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THE  REVISION 

OF   THE 

STATUTES   OF   THE  STATE  OF  NEW  YORK 

AND 

THE  REVISERS. 


AN   ADDRESS 

DELIVERED  BEFORE  THE 

ASSOCIATION  OF  THE  BAR  OF  THE  CITY  OF 
NEW  YORK, 

JANUARY    22,    1889. 

—  BY— 

WILLIAM    ALLEN     BUTLER. 


PUBLISHED  FOR  THE  ASSOCIATION. 

NEW  YORK  AND  ALBANY: 
BANKS--&   BROTHERS,   LAW  PUBLISHERS. 

1889. 


COPYRIGHTED,  1889, 

BY  THE  ASSOCIATION  OF  THE  BAR 

OF  THE  CITY  OF  NEW  YORK. 


INTRODUCTION. 


THIS  volume,  commemorative  of  the  Revisers  of  the  Statutes 
of  the  State  of  New  York  and  their  work,  owes  its  origin  to  the  fol- 
lowing correspondence  and  the  action  of  the  Association  of  the  Bar 
of  the  City  of  New  York  subsequently  taken  in  furtherance  of  the 
object  to  which  it  relates  : 

NEW  YORK,  March  ist,  1888. 

To  the  Executive  Committee  of  the  Association  of  the  Bar  of  the  City 
of  New  York. 

GENTLEMEN  : — 

I  have  for  a  long  time  desired  that  some  suitable  and 
permanent  memorial  should  exist  of  the  Revisers  of  the  Statutes  of 
this  State,  JOHN  DUER,  BENJAMIN  F.  BUTLER  and  JOHN  C.  SPENCER. 
I  name  them  in  the  order  of  their  appointment. 

The  signal  services  they  rendered  have  been  illustrated  by  the 
course,  during  more  than  half  a  century,  of  the  administration  of 
government  and  the  progress  of  jurisprudence,  not  only  in  this  State 
but  also  in  the  other  States  where  the  statutory  law  has  been  framed 
on  the  model  of  the  Revised  Statutes,  but  as  time  advances  and 
changes  in  the  law  are  multiplied  the  distinctive  character  of  this 
earlier  work  is  in  danger  of  passing  out  of  view. 

It  has  occurred  to  me  that  portraits  of  the  Revisers,  placed  side 
by  side  on  the  walls  of  the  Association  would  be  a  fitting  commemo- 
ration, and  that  coupled  with  the  presentation  of  these  portraits  a 
succinct  account  of  the  work  of  the  Revision,  with  sketches  of  the 
lives  and  services  of  the  Revisers,  might  be  prepared  and  published 
under  the  supervision  and  auspices  of  the  Association  so  as  to  form 
an  authentic  and  permanent  addition  to  the  literature  of  the  law. 

With  this  in-view  and  with  the  consent  of  the  representatives  of 
the  families  of  Chief  Justice  Duer  and  Mr.  Spencer  which  has  been 
cheerfully  accorded,  I  now  propose  to  present  to  the  Association  the 


11 

portraits  of  the  Revisers  as  soon  as  they  can  be  satisfactorily  com- 
pleted and,  if  approved  by  the  Executive  Committee  as  works  of  art, 
the  same  shall  be  received  by  the  Association  as  its  property  and 
placed  on  its  walls,  and  in  connection  with  their  acceptance  an 
historical  and  biographical  memorial,  as  above  indicated,  and  which 
I  will  undertake  to  prepare,  shall,  subject  to  like  approval,  be 
published  in  the  Association's  annual  report  or  otherwise,  as  may  be 
determined. 

Awaiting  your  action  on  this  proposition,  I  am 

Very  truly  yours, 

WM.  ALLEN  BUTLER. 

ASSOCIATION  OF  THE  BAR, 

7  WEST  2pTH  STREET. 

April  2d,  1888. 
WILLIAM  ALLEN  BUTLER,  Esq., 

Dear  Sir : — 

I  have  the  honor  to  inform  you  that  at  the  March  meeting 
of  the  Executive  Committee  of  this  Association,  your  very  liberal  and 
acceptable  offer  to  present  to  the  Association  portraits  of  the  distin- 
guished Revisers  of  the  N.  Y.  Statutes  together  with  memorial 
sketches  of  their  lives  and  services  was  received,  and  that  the  Com- 
mittee thereupon  on  motion  of  Mr.  Olney  unanimously 

Resolved,  That  the  letter  of  Mr.  Butler  be  entered  on  the 
Minutes,  and  that  the  proposition  as  therein  made  be  accepted 
with  the  cordial  thanks  of  the  Committee  ;  that  Mr.  Butler  be 
requested  to  prepare  the  Memorial  referred  to  in  his  letter,  so 
that  it  may  be  read  or  delivered  in  the  form  of  an  address  before 
the  Association  at  a  Special  Meeting  to  be  called  for  that  pur- 
pose, and  that  it  be  referred  to  a  Committee  consisting  of  the 
President  of  the  Association,  the  Chairman  of  this  Committee 
and  Mr.  Holt,  with  power  to  carry  this  resolution  into  effect. 
Very  respectfully  yours, 

S.  SIDNEY  SMITH, 

Secy  Ex.  Com. 


Ill 

By  appointment  of  the  Executive  Committee,  a  Special  Meeting 
of  the  Association  was  held  on  the  Evening  of  January  22,  1889, 
when  the  presentation  of  the  portraits  of  the  Revisers  to  the 
Association  was  made  in  the  presence  of  a  number  of  invited  guests. 
It  was  accompanied  by  an  address  by  Mr.  Butler  embracing  a  portion 
of  the  matter  contained  in  the  present  volume.  The  portraits  were 
accepted  on  behalf  of  the  Association  by  Mr.  Joseph  H.  Choate  its 
President,  and  the  following  minute  was  adopted  : 

At  a  Special  Meeting  of  the  Association  of  the  Bar  of  the  City 
of  New  York,  held  at  No.  7  West  2Qth  Street,  on  the  22d  day  of 
January,  1889. 

Mr.  William  Allen  Butler  presented  to  the  Association  portraits 
in  oil  of  John  Duer,  Benjamin  F.  Butler  and  John  C.  Spencer,  the 
Revisers  of  the  Statutes  of  the  State  of  New  York ;  and  delivered 
an  address  to  the  Association  on  the  Revisers  and  their  work. 

Mr.  Francis  Lynde  Stetson  presented  the  following  resolution, 
which  was  seconded  by  Mr.  Charles  A.  Peabody  : 

Resolved,  That  the  hearty  thanks  of  this  Association  be 
tendered  to  Mr.  Butler  for  the  able,  instructive  and  interesting 
address  to  which  we  have  just  listened,  that  it  be  appropriately 
published  under  the  direction  of  the  Executive  Committee,  and 
distributed  among  the  members  oi  the  Association,  that  there 
be  delivered  to  Mr.  Butler,  such  number  of  copies  as  he  may 
desire  ;  and  that  Mr.  Butler  be  respectfully  invited  to  give  the 
Association  the  manuscript  of  his  address  for  preservation  in 
its  Library. 

Which  was  unanimously  adopted. 

Extract  from  the  Minutes 

S.  B.  BROWNELL, 

Recording  Secretary. 

The  Executive  Committee  having  resolved  to  accompany  the 
work  with  engravings  of  the  portraits,  these  have  been  executed 
under  the  supervision  of  Messrs.  Banks  &  Brothers,  whose  house  has 
been  honorably  identified  with  the  Revised  Statutes  as  the  publish- 
ers of  every  successive  edition,  since  the  first  edition,  and  by  whom 
this  volume  is  published  for  the  Association. 


THE     REVISION 


AND 


THE   REVISERS. 


THE  awakened  interest  of  the  American  people  in  the 
men  and  the  events  of  the  time  preceding  the  war  for  the 
Union  has  opened  for  the  historian,  the  annalist  and  the 
biographer,  new  paths  in  old  fields. 

It  was  natural  that  with  the  re-establishment  of  the 
National  unity,  after  the  stormy  period  of  peril  and  conflict, 
there  should  come,  in  due  season,  a  great  calm,  in  whose 
clear  atmosphere  the  whole  life  of  the  nation,  past  and 
present,  would  stand  out  in  such  sharp  outline,  and  in  such 
varied  forms,  as  to  re- invite  to  its  exploration  in  every  part. 
Especially  has  the  integrity  of  the  Union,  as  vindicated  and 
made  sure  by  the  issue  of  the  great  struggle,  set  in  the 
clearest  light  the  true  sovereignty  of  each  State  as  the  or- 
ganizer and  ruler  of  its  own  interior  social  order  and  devel- 
opment, and  made  it  more  than  ever  the  duty  of  the  citi- 
zens of  each  separate  commonwealth  to  make  the  record  of 
its  growth  and  progress  complete  and  permanent. 

This  patriotic  service  is  most  of  all  required  of  the  older 
States,  whose  earlier  annals  embody  the  beginnings  of 
the  systems  of  government  which  have  now  overspread 
the  continent. 

The  Revised  Statutes  of  New  York,  familiar  to  us  all, 


as  the  body  of  the  written  law  by  which,  during  the  last 
fifty-eight  years,  under  the  various  constitutions  and  as  from 
time  to  time  amended,  the  government  of  this  State  has 
been  administered  in  all  its  departments,  stand  as  a  land- 
mark of  the  progress  of  free  government,  and  the  devel- 
opment of  the  law  as  a  science  within  the  boundaries  of 
our  own  State. 

The  lapse  of  time  since  the  first  enactment  of  the  Re- 
vised Statutes,  the  many  additions  and  changes  during 
nearly  three  score  years  of  rapid  growth  and  new  discovery 
and  invention,  and  the  passing  away  of  two  generations  of 
men,  have  tended  to  obscure  the  original  work,  and  to  les- 
sen the  number  of  the  witnesses  who  can  attest  its  great- 
ness. 

This  Association  has  deemed  it  fitting  that  some  com. 
memoration  of  both  the  work  of  the  Revision  and  its  au. 
thors  should  find  a  place  on  these  walls  and  in  our  records, 
and  it  has  been  for  me  altogether  a  privilege,  and  in  part, 
a  filial  duty,  too  long  delayed,  to  provide  the  portraits  of 
JOHN  DUER,  BENJAMIN  FRANKLIN  BUTLER  and  JOHN 
CLINTON  SPENCER,  the  three  Revisers,  for  preservation 
here  as  a  memento  of  their  joint  labors  in  the  work  which 
unites  their  names  and  memories. 

These  portraits  speak  for  themselves.  Necessarily,  no 
one  of  them  is  from  life.  They  are,  however,  from  the 
best  sources  available  to  me  with  the  aid  of  the  relatives  of 
Chief  Justice  Duer  and  of  Mr.  Spencer. 

The  portrait  of  Chief  Justice  Duer  is  an  original  by  Mr. 
J.  Carroll  Beckwith,  that  of  Mr.  Spencer  is  also  an  original 
by  Mr.  William  M.  J.  Rice,  while  the  third  portrait  is  a 
copy  by  Howard  Russell  Butler,  faithfully  reproduced  from 
an  original  in  my  possession,  by  Thomas  Hicks. 

They  have  been  approved  by  the  Executive  Committee 
as  works  of  art,  worthy  of  acceptance  as  the  property  of 
the  Association. 

The  Executive  Committee  have  also  intrusted  me  with 
the  task  of  preparing  a  sketch,  historical  as  to  the  revision, 
and  biographical  as  to  the  Revisers,  to  be  published  under 


the  auspices  of  the  Association  as  a  further  permanent 
memorial  of  both. 

In  performing  this  duty  I  am  reminded  that  it  was  ac- 
cepted more  than  thirty  years  ago  by  the  sole  surviving 
Reviser,  and  its  accomplishment  prevented  by  his  death 
shortly  afterwards.  Mr.  Marshall  S.  Bidwell  in  his  address 
at  the  meeting  of  the  Bar  held  in  reference  to  that  event, 
December  1,  1858,  said  : 

"  Upon  the  occasion  which  last  convened  the  members 
of  the  Bar — the  death  of  Judge  Duer — Mr.  Butler  made 
an  address  which  will  be  remembered  by  all  those  present ; 
at  the  conclusion  of  that  meeting,  I  expressed  a  wish  to 
him  that,  as  he  was  the  sole  survivor  of  the  gentlemen 
concerned  in  that  labor,  he  would  reduce  to  writing  a 
statement  of  the  manner  in  which  it  was  accomplished, 
and  the  different  parts  the  Revisers  took  in  it.  He  ex- 
pressed his  willingness,  if  it  was  the  desire  of  the  members 
of  the  Bar,  to  do  so.  On  enquiry  I  found  it  was,  as  I  an- 
ticipated, the  general  desire  of  the  Bar,  and  I  had  taken 
measures  to  have  it  accomplished  when  he  was  obliged  to 
depart  for  Europe." 

As  the  circumstances  seem  thus  to  have  devolved  this 
duty  upon  me  as  a  special  obligation,  its  discharge,  how- 
ever inadequate,  will,  I  trust,  be  accepted  as  an  effort  to 
furnish  a  record  not  unworthy  of  a  place  in  the  history  and 
literature  of  the  law. 

The  place  of  ]S"ew  York  in  the  Union  of  the  States  was 
originally  determined  and  has  been  maintained  by  lawyers. 
Within  her  boundaries,  on  her  Bench  and  at  her  Bar,  there 
have  always  been  jurists  of  integrity,  ability  and  patriot- 
ism, devoted  to  the  task  of  creating  and  administering  her 
free  government. 

The  Dutch  colony  of  New  Netherland,  dating  from 
1614,  and  continuing  for  half  a  century,  adopted  the  system 
of  townships  and  magistracies  derived  from  the  institu- 
tions of  Holland,  whose  local  municipal  system,  under  the 


government  of  the  States  General,  embodied  the  theory  of 
Republican  Government.  Under  this  system  the  people 
were  trained  in  the  rudimental  ideas  of  representative 
government  and  on  the  establishment  of  the  English 
rule  in  March,  1664,  the  population,  although  not  then 
exceeding  ten  thousand  souls,  were  impatient  of  external 
control,  and  ready  to  assert  and  maintain  popular  rights. 

The  English  Colonial  rule  proceeded  on  the  assumption  of 
absolute  control  in  the  Crown.  No  charter  was  ever  granted 
to  the  colonists ;  the  Governor  and  Colonial  Council  of 
seven  members,  afterwards  increased  to  twelve,  were  com- 
missioned by  the  King,  and  the  General  Assembly  was 
chosen  by  the  freeholders  of  the  several  counties,  but  the 
Governor  had  an  absolute  veto  on  all  bills  passed  by  the 
Assembly  and  Council,  and  also  the  power  of  proroguing 
and  dissolving  the  Assembly.  All  laws  passed  by  the 
Colonial  Legislature  were  subject  to  approval  or  rejection 
by  the  King,  and  if  disapproved  were  void. 

This  semblance  of  a  representative  government,  made 
more  intolerable  by  the  oppression  of  Parliament,  culmi- 
nating in  the  Stamp  Act,  was  thrown  off  by  the  Revolu- 
tion, and  the  State  of  New  York  came  into  existence  under 
the  Constitution  of  April  20,  1777. 

This  Constitution,  the  fifth  of  the  series  of  Constitutions 
adopted  by  the  States,  was  drawn  by  John  Jay,  afterwards 
the  first  Chief  Justice  of  the  Supreme  Court  of  the  United 
States,  as  chairman  of  the  committee  to  whom  its  prepara- 
tion was  intrusted. 

Robert  R.  Livingston,  the  first  Chancellor,  William 
Smith,  one  of  the  ablest  jurists  of  his  time,  John  Sloss  Ho- 
bart  and  Robert  Yates,  the  first  puisne  Judges  of  the 
Supreme  Court,  Gouverneur  Morris  and  William  Duer, 
father  of  the  Reviser,  were  conspicuous  members  of  this 
committee. 

The  Constitution  declared  that  "  such  parts  of  the  com- 
mon law  of  England  and  of  Great  Britain  and  of  the  acts 
of  the  Colonial  Legislature  as  together  formed  the  law  of 
the  colony  at  the  breaking  out  of  the  Revolution  in  1775, 


constituted  the  law  of  the  State,  subject  to  alteration  by 
the  Legislature." 

The  Colonial  Laws  from  1691  to  1777,  inclusive,  had  been 
the  subject  of  several  revisions  and  additions.  The  Laws 
of  the  State  were  edited  and  revised  in  1789,  under 
the  direction  of  the  Legislature,  by  Samuel  Jones  and 
Richard  Varick,  and  later,  in  1801,  by  Chief  Justice  Kent 
and  Justice  Radcliff  of  the  Supreme  Court.  In  1813, 
another  revision  was  made  by  William  P.  Van  Ness  and 
John  Wood  worth,  known  as  the  Revision  of  1813. 

None  of  these  so-called  revisions  was  anything  more 
than  a  mere  re-enactment  in  a  consolidated  form  of  the  ex- 
isting statutes  as  they  had  been  passed  from  time  to  time, 
with  some  amendments  suggested  by  the  Revisers  or 
inserted  by  the  Legislature.  They  were  drawn  in  separate 
acts  with  no  attempt  at  systematic  arrangement. 

They  were  all  similar  to  the  earlier  revisions  made 
during  the  Colonial  period,  first  by  William  Smith  and 
William  Livingston  in  1762,  and  afterwards  by  Peter 
Van  Schaick  in  1774. 

Thus  the  first  general  statute  in  the  two  volumes  of  the 
Revised  Laws  of  1813  is  one  passed  in  1784  in  relation  to 
magistrates  who  may  take  affidavits,  and  the  last  is  one 
passed  in  1813  to  prevent  trespasses  on  Indian  Lands. 
Between  these  are  inserted,  in  chronological  order,  but 
otherwise  without  any  attempt  at  classification,  the  many 
hundred  statutes  of  the  intermediate  years  as  modified  by 
amendments  or  other  changes  in  the  law. 

In  1821  the  Constitution  was  amended  and  again  the  lead- 
ing lawyers  of  the  State  controlled  the  convention.  Chan- 
cellor Kent,  Martin  Van  Buren,  Ambrose  Spencer,  Peter  A. 
Jay,  John  Duer,  Erastus  Root  and  Henry  Wheaton  were 
among  the  members  of  the  body.  Radical  changes  were 
made  in  the  organic  law  and  in  the  mode  of  administering 
the  government,'  and  soon  after  the  new  Constitution  went 
into  effect,  January  1,  1823,  it  became  evident  that  these 


6 

changes  as  well  as  those  made  by  the  successive  Legislatures 
since  1813,  necessitated  a  new  revision  of  the  statutes. 

Governor  Yates  had  been  a  Judge  of  the  Supreme  Court 
from  1808  to  1822  and  by  his  judicial  experience  had 
become  familiar  with  the  defects  of  the  existing  statutes. 
He  urged  the  subject  upon  the  Legislature  and  an  act  was 
passed,  November  27,  1824,  appointing  James  Kent, 
Erastus  Root,  then  Lieutenant- Governor,  and  Benjamin  F. 
Butler,  to  revise  the  statutes  of  the  State.  The  act  required 
the  work  to  be  completed  in  two  years  and  provided  for  a 
compensation  of  one  thousand  dollars  each  for  the  services 
to  be  performed  by  the  Revisers. 

This  act  contemplated  a  revision  similar  to  those  of  1813 
and  former  years.  It  did  not  authorize  anything  beyond 
the  compilation  of  the  existing  statutes  in  the  manner 
pursued  in  the  earlier  revisions,  much  less  a  remodelling  of 
the  statutory  law  or  the  reduction  to  statutory  form  of  the 
Common  Law. 

JAMES  KENT,  whose  name  stood  at  the  head  of  the  commis- 
sion thus  constituted,  had  retired,  July  31,  1823,  from  the 
office  of  Chancellor.  He  had  served  the  State  as  one  of  the 
puisne  Judges  of  the  Supreme  Court,  from  his  first  ap- 
pointment February  6,  1798,  to  July  2,  1804,  when  he  be 
came  Chief  Justice  and  so  remained  until  February  25, 
1814,  the  date  of  his  appointment  as  Chancellor.  His  judicial 
career  had  placed  him  on  the  roll  of  great  Judges,  and 
the  wonderful  revolution  in  the  practice  and  administration 
of  equity  accomplished  during  the  nine  years  of  his  service 
as  Chancellor  is  attested  by  the  tributes  paid  him  by  the 
Bar  on  his  retirement  and  which  occupy  the  concluding 
pages  of  the  final  volume  of  Johnson's  Chancery  Reports. 
This  brilliant  career  on  the  Bench  was  cut  short  at  the 
age  of  sixty  years,  by  the  operation  of  the  provision  in  the 
Constitution  of  1821,  which  perpetuated  a  similar  provis- 
ion in  the  Constitution  of  1777,  disqualifying  the  higher 
judicial  officers  from  the  exercise  of  their  duties  after 
attaining  sixty  years  of  age. 


The  fiYst  draft  of  the  judiciary  article  of  the  Constitu 
tion  of  1821  extended  the  tenure  of  the  judicial  officers  to 
seventy  years  of  age,  but  by  some  sinister  influence  the  un- 
reasonable limitation  of  sixty  years  was  substituted  by 
the  convention.  Denounced  in  strong  terms  by  Hamilton, 
in  the  Federalist,  as  early  as  1778,*  its  reappearance 
in  the  new  Constitution  was  justly  declared  to  be 
"  a  satire  on  the  intellect  of  the  Bar  and  a  standing  re- 
proach to  the  discernment  and  integrity  of  the  appointing 
power,  f  " 

Driven  from  the  Bench  at  the  height  of  his  judicial  fame 
and  in  the  fullness  of  his  judicial  capacity,  it  was  incom- 
patible with  the  views  of  the  ex- Chancellor,  governed  as 
they  probably  were,  by  the  prevailing  ideas  of  the  period, 
that  he  should  resume  practice  at  the  Bar.  He  said  to 
James  I.  Roosevelt,  then  a  young  man,  long  afterwards  a 
Judge  of  the  Supreme  Court,  in  our  city,  "  I  would  rather 
saw  wood."  Judge  Roosevelt,  in  relating  to  me  this  in- 
cident, added  that  he  himself  suggested  to  Chancellor  Kent 
the  preparation  of  a  work  on  Equity  jurisprudence,  an 
idea  amplified  and  improved  upon  in  the  noble  task  to 
which  he  addressed  himself,  whose  splendid  issue  in  the 
Commentaries  on  American  Law  have  more  than  healed  the 
wound  inflicted  by  the  blunder  or  the  crime  of  the  Consti- 
tution makers  of  1821. 

Chancellor  Kent,  in  a  manner  entirely  characteristic, 
declined  to  act  as  one  of  the  Revisers.  While  the  question 
of  his  acceptance  was  pending,  a  rumor  was  started  by  the 
gossip  mongers,  of  whom  the  political  circles  were 
as  full  then  as  they  are  now,  that  he  was  unwilling  to 
be  associated  with  the  Commissioner  whose  name  was  last 
on  the  list,  because  of  some  strictures  he  had  made  in  the 
Court  of  Errors  on  one  of  the  Chancellor's  decrees,  and  it 
was  doubtless  thought  a  very  probable  circumstance, 
at  a  time  when  judges  and  lawyers  were  alike  partisan  and 


*  Federalist,  No.  79. 

f  7  John's  Chy.  R.,  p.  347,  note. 


8 

prejudiced  to  an  extent  we  can  hardly  understand  and 
happily  do  not  emulate,  that  the  antagonism  in  the 
political  views  of  the  veteran  Federalist  Chancellor 
and  a  young  and  ardent  Republican  lawyer,  the  political 
associate  of  Tompkins  and  Van  Buren,  might  well  be  an 
additional  obstacle  to  their  serving  together  on  the  com- 
mission. 

It  turned  out  that  the  Chancellor  had  been  wholly  mis- 
represented as  to  this  supposed  ground  of  reluctance  to  ac- 
cept the  appointment.  He  was  willing  to  serve,  but  he  did 
not  want  any  associate.  He  wrote  under  date  of  November 
29,  1824,  as  follows  : 

"  BENJAMIN  F.  BUTLEK,  Esq., 

Dear  Sir. — I  beg  leave  to  assure  you  that  Mr.  C.  is 
wholly  mistaken  in  supposing  there  is  any  personal  differ- 
ence between  you  and  me,  or  that  I  should  for  that  cause 
be  unwilling  to  be  associated  with  you.  I  have  the  highest 
confidence  in  the  purity  and  honor  that  govern  you,  and  I 
can  scarcely  recollect  anything  of  the  occurrence  which 
was  the  foundation  of  the  supposed  misunderstanding.  I 
have  only  a  faint  recollection  of  something  having  been  said 
by  yon  in  the  Court  of  Errors,  relative  to  the  errors  of  one 
of  my  Chancery  decrees,  which  as  reported  to  me  in  the 
first  instance,  gave  me  some  pain.  But  the  explanation 
followed  immediately  afterwards  and  was  entirely  satis- 
factory, and  I  have  not  thought  of  the  matter  since.  I  have 
no  other  feeling  towards  you  than  those  of  strong  respect 
and  esteem. 

I  am  your  Friend  &  ob't  Ser't 

JAMES  KENT." 

A  few  days  later,  December  8th,  1824,  after  having  for- 
mally declined  the  appointment,  he  again  wrote  as  follows  : 
"  It  would  have  been  most  convenient  to  me  to  have  had 
the  duty  of  revising  the  laws  assigned  to  me  alone,  giving 
me  a  reasonable  time  and  allowing  me  a  reasonable  com- 


9 

pensation,  but  if  it  was  thought  best  to  have  an  associate 
that  was  agreeable  to  me  I  should  have  had  no  objection 
and  you  would  have  been  entirely  and  perfectly  agreeable 
to  me  as  an  associate." 


It  was  fortunate  for  the  work  of  the  Revision,  as  finally 
developed,  that  Chancellor  Kent  declined  to  take  part  in  it. 
As  the  sole  Reviser,  he  would  have  been  more  than  com- 
petent for  the  task,  which  would  have  been  mainly  a  repe- 
tition of  his  earlier  work  in  conjunction  with  Judge  Radcliff, 
in  1801,  but  while  his  long  exercise  of  undivided  authority 
as  Chancellor  made  him  averse  to  working  with  associates, 
his  still  longer  exercise  of  the  judicial  function  had  unfitted 
him  for  sympathy  and  co-operation  in  the  bold  and  novel 
methods  for  which  the  Revision  gave  the  opportunity  and 
which  demanded  the  enthusiasm  and  courage  of  men  of  a 
new  generation. 

A  quarter  of  a  century  passed  on  the  Bench,  in  the 
application  of  the  rules  of  the  English  Common  Law  and 
the  English  Court  of  Chancery  to  the  affairs  of  a  new 
commonwealth  which,  while  it  gloried  in  its  independence 
as  a  State,  held  fast  to  the  systems  of  law  and  equity  of 
the  mother  country,  with  a  tenacity  which  independence 
seemed  only  to  strengthen,  was  an  admirable  preparation 
for  the  task  of  a  commentator  whose  work  is  mainly  retro- 
spective, but  not  for  the  architect  of  an  improved  system 
of  jurisprudence. 

John  Duer  was  appointed  by  Governor  Yates  to  fill  the 
place  vacated  by  Chancellor  Kent.  He  accepted  with  alacrity 
and,  as  the  speedy  result  of  the  concurring  views  of  himself 
and  his  junior  colleague,  a  bold  and  radical  change  was 
made  by  them  in  the  whole  scheme  of  the  Revision  and  the 
methods  of  its  execution. 

By  that  kind  of  inspiration  which  so  often  waits  on  true 
devotion  to  a  high  calling,  the  idea  came  to  them  of  replac- 
ing the  mass  of  disconnected  statutes  they  were  called 
upon  to  collate  by  a  new  and  complete  system  of  original 


10 

laws,  regulating  every  department  of  government,  based 
upon  the  old  foundations  of  the  common  law  and  the  exist- 
ing statutes,  and  made  serviceable  by  fundamental  and  far 
reaching  changes  and  by  a  symmetrical  and  scientific  ar- 
rangement. 

This  rare  opportunity  they  seized  with  that  unquestion- 
ing enthusiasm  which,  when  rightly  directed  and  controlled, 
is  the  surest  presage  of  success. 

To  set  this  new  movement  in  operation  far  greater 
powers  were  needed  by  the  Revisers  than  those  conferred 
by  the  appointing  Act  of  1824,  and,  immediately  upon  the 
assembling  of  the  Legislature  of  1825,  which  convened  on 
the  fourth  day  of  January,  we  find  the  two  junior  Revisers 
in  communication  with  the  Assembly,  stating,  very  mo- 
destly but  with  absolute  clearness,  the  plan  they  proposed 
and  asking  for  the  needed  grant  of  power  for  its  execu- 
tion. 

They  advanced  the  proposition  that  the  time  had  come 
when  the  whole  written  law  might  be  comprised  under 
appropriate  titles,  classified  in  natural  order  and  arranged, 
as  to  each  of  its  branches,  in  a  clear  and  scientific  method 
and,  while  conceding  the  novelty  and  difficulty  of  the  pro- 
ject, declared  their  readiness  to  undertake  it. 

Their  statement  was  accompanied  by  a  specimen  of  the 
new  style  of  statute  by  which  they  sought  to  replace  the 
old  and  cumbrous  system  of  Revision.  This  specimen 
embodied  the  statutory  regulation  of  the  Court  of  Errors  and 
the  Court  of  Chancery. 

Placed  side  by  side  with  the  existing  statutes  on  the 
same  subject  the  comparison  showed  at  a  glance  the  vast 
advantage  to  be  gained  by  reduction  in  length,  in  simplifi- 
cation of  expression  and  in  the  scientific  co-relation  of  all 
the  parts  to  the  whole  which  was  the  key  to  the  entire  sys- 
tem as  proposed.  In  connection  with  this  profert  by  way 
of  sample,  they  urged  the  importance  of  redeeming  the 
laws  from  the  uncertainties  and  obscurities  arising  from 
the  intricate  and  obsolete  diction  in  which  so  many  of  them, 
especially  those  copied  from  the  English  acts,  had  been 


11 

written  and  the  advantage  of  establishing  the  whole  body 
of  the  statute  law  in  such  permanent  form  that  instead  of 
constantly  recurring  Revisions,  particular  amendments  and 
additions  could  be  made  as  occasion  might  require,  with- 
out disturbing  the  other  parts  of  the  system. 

They  add : 

"  We  are  fully  aware  of  the  responsibility  that  we  incur 
by  proposing  to  the  legislature  a  new  mode  of  conducting  a 
Revision  of  the  laws,  and  are  prepared  to  encounter  the 
charge,  so  easily  preferred,  of  rash  and  unnecessary  inno- 
vation. In  reply  DO  such  a  charge,  we  shall  only  observe, 
that  the  conviction  of  the  practicability  and  great  import- 
ance of  the  change  which  we  recommend,  has  been  pro- 
duced in  our  own  minds  by  slow  and  careful  deliberation, 
overcoming  the  prepossessions  common  to  the  profession  to 
which  we  belong. 

That  much  care,  diligence  and  research  will  be  requisite 
tc  the  successful  execution  of  this  plan,  we  freely  admit, 
and  it  is  with  a  full  sense  of  the  difficulties  it  may  impose 
upon  ourselves,  that  we  urge  its  adoption  ;  yet  we  trust  we 
may  without  presumption  express  our  belief  that  these 
difficulties  may  be  overcome,  the  evils  which  may  be  appre- 
hended effectually  obviated,  and  the  advantages  which  we 
have  endeavored  to  indicate,  to  a  considerable  extent  be 
secured  and  realized. 

We  solicit  a  comparison  of  the  acts  drawn  up  by  us, 
with  those  now  in  force,  of  which  they  are  Revisions. 
After  such  a  comparison  *  *  *  it  will  be  found 
that  we  propose  to  do  nothing  more  than  to  free  our  writ- 
ten code  from  the  prolixities,  uncertainties  and  confusion, 
incident  to  the  style  and  manner  in  which  it  has  hitherto 
been  framed,  and  to  apply  to  the  elucidation  of  this  branch 
of  the  noblest  of  all  sciences,  those  principles  of  an 
enlarged  philosophy,  which  now  obtain  in  every  other 
department  of  knowledge." 

It  will  be  noticed  that  General  Root  did  not  unite  in 
this  communication,  nor  did  he  ally  himself  to  the  advanced 
methods  of  his  colleagues.  An  active  and  veteran  party 
leader  and  an  able  advocate  of  the  older  type,  he  was 
neither  adapted  -nor  inclined  to  the  work  of  a  pioneer  in 
legal  reform.  He  had  already  since  his  appointment  done 
something  at  his  home  in  Delaware  County  towards  Revis- 


12 

ing,  in  the  old  fashioned  way,  the  laws  relating  to  taxes 
and  to  highways,  subjects  always  interesting  to  the  rural 
legislator,  but  the  change  of  plan  on  which  his  associates 
had  resolved  led  to  his  retirement,  and  the  new  bill  giving 
the  Revisers  ampler  powers,  substituted  Henry  Wheatonin 
his  place  and  provided  for  a  compensation  of  8500  to  Gen. 
Root  for  the  services  he  had  rendered. 

This  new  bill  was  not  passed  without  a  struggle.  It 
was  at  first  laid  on  the  table  by  the  Assembly  by  a  vote  of 
54  to  51,  and  finally  passed  by  a  vote  of  56  to  38.  Nothing 
which  involved  a  delegation  or  an  exercise  of  public  powers 
could  be  accomplished  in  those  days  of  bitter  political  con- 
flict without  a  struggle  between  the  Clintonians,  whose 
great  leader  had  just  been  elected  Governor,  and  the  Buck- 
tails,  as  the  Democrats  of  the  day  were  dubbed. 

In  the  Senate,  John  C.  Spencer,  then  a  member  of  that 
body,  afterwards  one  of  the  Revisers,  moved  to  amend  by 
striking  out  Mr.  Wheaton's  name  and  committing  the 
whole  work  to  the  two  acting  Revisers,  Messrs.  Duer  and 
Butler.  This  was  voted  down.  It  was  then  moved  to 
increase  the  compensation  of  General  Root,  who  had  been 
the  presiding  officer  of  the  preceding  Senate,  from  $500  to 
$1,000.  This  was  carried  and  for  a  time  imperiled  the  whole 
measure.  The  Assembly  thought  $500  ample  compensation 
for  a  few  months  work,  for  which  a  thousand  dollars  for 
two  years  service  was  the  stipulated  price.  It  refused  to 
concur  in  the  Senate's  amendment ;  the  Senate  refused  to 
recede  ;  finally  a  conference  committee  adjusted  the  differ- 
ence, the  higher  measure  of  compensation  was  conceded 
and  the  bill  as  finally  passed,  April  2,  1825,  gave  the  retir- 
ing Reviser  a  thousand  dollars  which  must  be  placed  to  the 
debit  of  the  general  tax  system  and  the  turnpikes  and  other 
highways  of  the  State. 

The  new  Act  allowed  two  years  for  the  completion  of  the 
work,  and  while  fixing  the  same  compensation  as  the 
former  Act,  provided  that  it  might  be  increased  by  the 
Legislature. 

Whatever  questions  had  arisen  as  to  the  wisdom  of 


13 

entering  on  the  unexampled  movement  of  reform  authorized 
by  the  Act  of  1825,  none  had  been  raised  as  to  the  com- 
petency of  the  two  men  who  had  initiated  it  and  who  vol- 
unteered to  carry  it  to  completion. 

JOHK  DUER,  born  at  Albany,  October  7,  1782,  a  son  of 
Colonel  William  Duer,  of  Revolutionary  memory,  had, 
after  two  years'  service  in  the  United  States  Army,  which 
he  joined  at  the  age  of  sixteen  years,  entered  the  office  of 
General  Hamilton.  The  deficiency  of  his  early  education 
he  made  good  by  a  thorough  course  of  study,  particularly 
in  the  classics  and  the  modern  languages,  preparatory  to 
entering  on  the  special  study  of  the  law.  As  early  as  1816 
we  find  him  acting  as  counsel  in  the  Court  of  Errors, 
associated  with  John  V.  Henry  and  opposed  by  Thomas  J. 
Oakley  and  Martin  Van  Buren,  in  the  important  case  of 
Jackson  vs.  DeLancey,  reported  in  13  Johnson,  which 
involved  the  title  to  lands  in  the  city  of  New  York,  once 
the  property  of  his  maternal  grandfather,  William  Alex- 
ander, the  Lord  Stirling  of  the  revolutionary  army.  He 
was  at  that  time  practising  law  in  Orange  County,  and  was 
firmly  established  in  a  leading  position  at  the  Bar.  He 
came  into  prominent  public  life  as  a  delegate  from  Orange 
County  to  the  Convention  of  1821,  in  which  he  distinguished 
himself  by  his  ability  and  eloquence.  He  had  acquired  a 
reputation,  justly  accorded  and  never  impaired  during  his 
long  and  active  life,  for  "great  quickness  and  fertility  of 
intellect,  and  for  a  vast  amount  of  acquired  knowledge  not 
merely  in  the  learning  of  his  profession,  but  in  kindred 
sciences  and  general  literature."  His  mind  had  a  wide 
range  without  being  weakened  by  its  discursive  habit.  The 
more  recondite  the  subjects  of  legal  investigation  the  more 
they  attracted  him,  and  the  remodelling  of  the  law  was  a 
task  kindred  and  congenial  to  his  intellect. 

BENJAMIN  F?  BUTLER,  a  native  of  Columbia  County, 
N.  Y. ,  was  born  December  14,  1795,  at  Kinderhook  Land- 
ing, on  the  Hudson,  afterwards  set  off  as  a  separate  town 


14 

by  the  name  of  Stuyvesant.  He  came  of  an  original  Irish, 
stock,  combined  with  that  of  the  early  Puritans  by  the 
marriage  of  his  ancestor,  Jonathan  Butler,  with  Temper- 
ance Buckingham,  a  daughter  of  one  of  the  first  settlers  of 
Connecticut. 

His  father,  Medad  Butler,  emigrated  from  Branford, 
Connecticut,  in  1787,  at  the  age  of  twenty-two,  to  the 
banks  of  the  Hudson,  where  he  established  himself  in 
business,  and  where  he  lived  during  the  rest  of  his  life  of 
eighty-four  years,  serving  the  State  during  a  part  of  it  in 
the  Legislature,  and  for  many  years  as  a  county  judge  of 
Columbia  County.  Of  a  family  of  twelve  children,  six  of 
whom  died  in  infancy,  the  Reviser  was  the  eldest. 

Educational  advantages  were  almost  unknown  in  this 
State  in  the  earlier  part  of  this  century,  outside  of  its  more 
thickly  settled  portions,  and  the  Dutch  settlers  of  Kinder- 
hook  did  not  include  the  schoolmaster  in  their  municipal 
arrangements.  To  a  native  of  New  England  who  had 
enjoyed  the  benefit  of  the  schools  already  planted  there, 
the  want  of  like  facilities  for  his  children  was  a  sore  trial. 
By  a  happy  accident  the  need  was  amply  supplied.  Two 
young  men,  John  Freese  and  Elijah  Garfield  by  name,  came 
from  Stockbfidge,  Mass.,  to  Kinderhook  Landing,  bound 
for  New  York,  and  asked  for  passage  on  one  of  Medad 
Butler's  sloops.  He  found  that  their  voyage  was  with  the 
intent  of  establishing  themselves  as  schoolmasters  on  Long 
Island,  where  they  hoped  to  find  employment  in  some  of 
the  older  settlements.  He  at  once  tried  to  persuade  them 
to  tarry  at  the  "Landing"  and  set  up  a  school  there, 
specially  for  the  benefit  of  the  bright  pupil  he  could 
furnish  in  his  eldest  boy,  who  had  shown  a  wonderful  love 
of  reading  and  study.  The  young  men  were,  however, 
bent  on  pushing  their  way  southward,  but  agreed  that,  in 
case  of  the  failure  of  their  plan,  they  would  return  and 
accept  the  offer.  Long  Island  did  not  prove  the  land  of 
promise  they  had  looked  for,  and  before  many  days  they 
re-appeared,  and,  true  to  their  word,  started  the  school  at 
the  "  Landing." 


15 

Both  these  men  were  good  teachers,  and  inspired  their 
young  pupil  with  a  love  of  the  classics  he  never  lost.  He 
read  Latin  as  a  habit  almost  daily  during  his  life,  carrying 
in  his  vest  pocket  a  leaf  torn  from  an  old  edition  of  his 
favorite  Horace,  employing  his  spare  moments  while  wait- 
ing in  Court,  or  at  other  chance  periods  of  leisure,  in  read- 
ing and  re-reading,  and  sometimes  turning  into  English 
verse,  the  numbers  of  the  Roman  poet. 

Garfield,  a  type  of  the  old  style  pedagogue,  taught 
school  all  his  life,  and  for  many  years  at  Middletown,  Con- 
necticut, where  he  prepared  boys  for  college.  After  his 
favorite  pupil  had  fulfilled  all  his  early  promise,  and  risen 
to  the  highest  rank  in  his  profession  and  to  prominence  in 
public  service,  he  made  a  visit  to  the  school  of  his  old 
preceptor,  whom  he  found  engaged  as  of  yore  in  the 
drudgery  of  the  recitation  room.  Overjoyed  at  the  appear- 
ance of  his  old-time  pupil,  he  threw  aside  his  text  book 
and  ferule,  dismissed  the  school,  and  sent  the  boys  off  happy 
in  an  unexpected  half- holiday. 

On  leaving  school  in  1811,  the  young  student  went  into 
the  office,  at  Hudson,  of  Martin  Van  Buren,  a  warm  personal 
friend  of  his  father,  who  saw  such  signs  of  promise  in  the 
son  that  he  pressed  him  into  his  closest  service.  Until  his 
marriage  in  1818,  he  was  an  inmate  of  Mr.  Van  Buren' s 
family,  his  law  partner  in  Albany  from  the  time  of  his  ad- 
mission to  the  Bar  in  1817,  and  the  successor,  in  large 
measure,  of  the  legal  business  from  which  Mr.  Van  Buren 
withdrew  on  his  election  to  the  United  States  Senate  in 
1821. 

Mr.  Van  Buren' s  standing  and  repute  as  a  lawyer  were 
greater  than  is  generally  supposed.  His  later  conspicuous 
public  career,  culminating  in  the  Presidency,  has  obscured 
his  earlier  brilliant  record  as  a  lawyer.  In  fact,  he  was, 
during  his  active  practice  and  until  his  exclusive  devotion 
to  public  affairs,  at  the  very  front  of  the  Bar,  succeeding 
Abraham  Van  Yechten  and  preceding  Thomas  J.  Oakley  as 
Attorney- General  of  the  State  at  a  time  when  leadership  in 
the  profession  was  an  essential  qualification  for  the  place, 


16 

and  competing  in  forensic  struggles  with  the  ablest  advo- 
cates. The  terse  and  frank  admission  of  his  great  rival, 
Elisha  Williams,  the  incomparable  jury  lawyer  of  his  time, 
that,  while  he  got  all  the  verdicts,  Van  Buren  got  all  the 
judgments,  was  only  a  fair  tribute  to  his  ascendency. 
Tardy  justice  is  being  done  to  Mr.  Van  Buren  as  jurist, 
statesman  and  patriot,  and  it  is  to  the  honor  of  our  Associa- 
tion that  one  of  its  members,  in  a  recent  biography  marked 
by  absolute  candor,  thorough  research,  and  a  rare  literary 
skill,  has  rescued  his  memory  from  the  disparagement  and 
detraction  of  prejudiced  and  superficial  writers  of  opposing 
political  views,  and  set  it  in  a  true  historic  light. 

Mr.  Van  Buren  had  no  misgiving  in  committing  to  his 
young  partner  in  the  law  the  care  of  his  clients  and  their 
causes.  In  fact,  the  junior  was  already  established  on  his 
own  merits.  In  illustration  of  this,  I  may  be  permitted  to 
quote  from  a  biographical  sketch  published  in  January, 
1839,  fifty  years  ago,  a  passage  which  describes  his 
first  appearance  in  the  Court  of  Errors,  which  runs  as  fol- 
lows : 

"He  was  the  attorney  in  a  cause,  with  Colonel  Burr 
and  Mr.  Van  Buren,  against  the  celebrated  Mr.  Henry, 
then  at  the  head  of  the  Albany  Bar,  and  one  of  the  most 
eminent  lawyers  in  the  State.  The  case  turned  on  recon- 
dite questions  of  black-letter  learning,  and  such  was  the 
impression  made  by  Mr.  Butler's  argument,  that  neither 
of  his  distinguished  senior  counsel  thought  it  worth 
while  to  speak  in  the  cause,  which  was  gained  single- 
handed  by  the  young  advocate  whose  first  effort  was 
thus  so  arduous  and  so  honorable.  His  first  cause  in  the 
Court  of  Errors  was  also  won,  in  the  next  year,  in  a 
similar  single  combat  with  the  same  powerful  antagonist. 
Mr.  Van  Buren  who  had  argued  it  in  the  Supreme  Court 
below,  having,  on  his  withdrawal  from  practice,  advised 
his  client  to  entrust  it  to  Mr.  Butler's  hands.  This 
success  placed  him  at  once  in  the  front  rank  of  his  pro- 
fession." 

In  1821  he  was  appointed  District  Attorney  of  Albany 


17 

County,  and  was  the  incumbent  of  that-  office  when,  most 
unexpectedly  to  himself  and  also  to  Mr.  Duer,  as  he  de- 
clared in  his  eulogy  on  the  Chief  Justice  at  the  meeting  of 
the  Bar  of  this  city,  held  August  6,  1858,  they  were  ap- 
pointed Revisers.  The  casual  intimacy  they  had  formed  as 
associates  in  a  cause  at  the  Columbia  Circuit,  was  thus 
suddenly  cemented  into  a  close  alliance. 

On  his  resignation  from  the  office  of  District  Attorney  in 
March,  1825,  the  Court  of  Common  Pleas,  by  an  entry  in 
its  minutes,  paid  an  unusually  warm  tribute  to  the  fairness 
as  well  as  the  fidelity  with  which  he  had  discharged  his 
duties  as  a  public  prosecutor. 

When  appointed  Reviser,  he  lacked  seventeen  days  of 
being  twenty-nine  years  of  age. 


We  thus  find  the  task  of  re-framing  the  whole  statute 
law  of  the  State  upon  a  new  and  untried  basis,  committed 
mainly,  and  on  their  own  motion,  to  two  young  men  who 
had  sprung  from  the  ranks  of  the  people,  neither  of  whom 
held  a  college  diploma,  both  of  whom  had  carved  their  own 
way  to  leadership,  and  who,  whiJe  their  elders  shrank  from 
this  task,  had  courted  it  them  selves  with  that  consciousness 
of  strength  and  mastery  which  the  world  of  smaller  men 
sometimes  calls  self-conceit,  but  which  is  so  often,  in  the  in- 
dividual aspirant,  only  the  healthy  beating  of  the  pulse  of 
genius. 

The  Legislature,  by  the  Act  of  1825,  as  we  have  seen, 
probably  at  the  suggestion  of  the  two  other  Revisers,  had 
named  Henry  Wheaton  as  their  associate.  He  had  been  a 
member,  with  John  Duer,  of  the  Constitutional  Convention 
of  1821,  and  at  the  time  of  his  appointment  as  Reviser  was 
the  reporter  of  the  Supreme  Court  of  the  United  States,  an 
office  he  held  until  January,  1827.  In  April  of  that  year, 
he  was  sent  as  Charge  d' Affaires  of  the  United  States  to 
Denmark,  and  ceased  to  act  in  the  Revision. 

In  the  correspondence  of  the  Revisers  in  my  possession 
there  is  no  trace  of  any  considerable  work  done  by  Mr. 


18 

Wheaton  in  conjunction  with  his  colleagues,  although  his 
name  appears  with  theirs,  appended  to  the  Revisers'  re- 
ports to  the  Legislatures  of  1826  and  1827.  He  prepared 
one  or  two  of  the  earlier  chapters,  but,  probably,  besides 
this  did  little  more  than  to  concur  in  the  action  of  his  as- 
sociates. But,  at  the  outset,  he  gave  to  their  plan  his 
hearty  assent,  and  while  no  letters  or  memoranda  by  him  are 
included  in  the  papers  of  the  revision,  one  important  docu- 
ment exists  which,  by  a  few  words  of  endorsement  in  his 
unmistakable  handwriting  and  phraseology,  establishes  the 
authorship  and  the  date  of  the  first  written  plan  of  the  en- 
tire work.  This  paper  of  eleven  pages  of  the  coarse  un- 
ruled foolscap  of  the  time,  is  entitled  "General  Arrange- 
ment," and  contains  a  sketch  and  outline  of  all  that  was 
afterwards  embodied  in  the  Revised  Statutes,  classifying 
the  entire  body  of  laws  for  the  government  of  the  State, 
under  five  leading  heads.  Prepared  immediately  after  the 
passage  of  the  Act  of  April  21,  1825,  it  brings  into  outline 
the  work  as  it  lay  in  the  minds  of  the  promoters  of  that 
act,  and  is  a  summary  of  the  system  they  sought  to  esta- 
blish. 

It  starts  by  dividing  under  five  leading  heads,  the  whole 
body  of  the  law. 

1.  The  laws  which  relate  to  the  government,  to  the  gen- 
eral policy,  and  to  the  internal  police  of  the  State. 

2.  The  laws  which  relate  to  the  domestic  relations,  to 
property,  to  contracts,   and  to   other  matters   connected 
therewith. 

3.  The  laws  which  relate  to  the  judiciary  establishments, 
and  to  the  mode  of  procedure  in  civil  cases. 

4.  The  laws  relating  to  crimes  and  punishments,  and  to 
the  mode  of  prosecution  and  punishment. 

6.  Local  Laws. 

Then  follows  a  subdivision  of  Chapters,  Titles  and  Arti- 
cles, giving  the  particulars  of  the  laws  to  be  classified  under 
each  of  the  five  general  divisions  as  proposed,  beginning 
with  the  boundaries  of  the  State  and  its  territorial  divisions, 


19 

and  the  regulation  of  government  of  counties  and  towns, 
and  proceeding  to  cover  the  whole  subject  of  governmental 
control  in  all  its  departments,  upon  the  system  which,  as 
perfected,  was  embodied  in  the  Revised  Statutes.  This 
paper  is  endorsed,  "Projet  of  General  Plan  of  Revision 
handed  in  by  Mr.  Butler,  May  11,  1825." 

The  entire  paper  is  in  the  handwriting  of  the  Reviser 
who  thus  "  handed  in  "  and  submitted  to  the  judgment  of 
his  colleagues  what,  probably,  Mr.  Wheaton  alone  of  the 
New  York  lawyers  of  his  day  would  have  thought  of 
designating  a  projet,  a  word  which  his  habits  of  study  as  a 
civilian  and  a  publicist  suggested  to  him  as  best  descriptive 
of  such  novel  and  far  reaching  propositions.  In  this  term, 
and  in  the  marginal  suggestions  which  he  made,  we  find 
one  of  those  incidental  traits  which  reveal,  by  a  casual 
touch,  the  individual  character  and  distinct  personality  of 
the  writer.  Mr.  Wheaton' s  reputation  stands  on  his  earlier 
work  as  a  reporter  of  the  Supreme  Court  during  the  period 
to  which  belong  the  great  constitutional  arguments  and 
decisions,  in  the  time  of  Chief  Justice  Marshall,  so  fully 
exhibited  in  the  twelve  volumes  of  his  reports,  and  on  his 
later  work  as  a  commentator  on  International  Law.  His 
almost  life-long  voluntary  exile,  in  a  diplomatic  service,  first 
at  Copenhagen,  and  then  at  Berlin,  withdrew  him  from  his 
profession  and  from  the  society  of  his  countrymen,  to 
whom  he  is  known  only  as  an  author.  It  would  doubtless 
have  been  a  pleasing  anticipation,  could  he  have  foreseen 
that  the  few  words  of  endorsement  traced  by  his  hand  on 
the  discolored  manuscript  now  first  produced,  after  the 
lapse  of  more  than  three  score  years,  before  a  body  of 
lawyers  in  the  chief  city  of  the  nation,  would  identify  the 
earliest  recorded  effort  at  a  written  system  of  governmental 
statute  law  for  an  English-speaking  people. 

While  the  manuscript,  both  by  the  handwriting  of  the 
body  of  the  plan  and  by  Mr.  Wheaton' s  endorsement, 
shows  by  whom  it  was  prepared,  it  must  be  understood 
that  no  claim  is  made  to  exclusive  originality  in  the 
ideas  it  embodies.  On  the  contrary,  the  author  of  the  plan 


20 

himself  in  the  address  already  referred  to,  in  commemora- 
tion of  Chief  Justice  Duer,  whose  death  was  within  a  few 
months  to  be  followed  by  his  own,  generously  accorded  the 
merit  of  the  first  suggestion  of  the  plan  to  the  friend 
whom  he  eulogized. 

Without  detracting  from  the  force  of  this  concession, 
the  fact  remains  that  the  initial  step  in  the  revision,  by 
which  form  was  first  given  to  the  idea  of  a  work  so  unpre- 
cedented, so  delicate  and  so  difficult,  is  found  in  this 
draft,  and  it  is  not  unworthy  of  notice  that  the  original 
conception  of  his  associates,  and  his  own  matured  views 
were  thus  traced  by  a  young  lawyer,  not  then  thirty  years 
old,  in  the  first  decade  of  his  practice  at  the  Bar,  with  no 
other  experience  than  that  gained  in  his  native  State,  and 
in  the  face  of  the  adverse  sentiment  of  the  profession. 

It  is  almost  impossible  for  the  men  of  this  generation, 
who  have  been  trained  in  the  system  which  the  Revised 
Statutes  established,  and  accustomed  to  the  organic  law  as 
established  by  the  Constitution  of  1846  and  subsequent 
amendments,  and  the  various  codes  which  have  been  adopted 
and  projected,  and  who  are  also  accustomed  to  innovations, 
experiments  and  schemes  in  every  department  of  our  many- 
sided  social  system,  to  comprehend  the  state  of  things 
existing  on  May  11,  1825,  the  date  of  the  first  draft  of  the 
plan  of  the  Revised  Statutes. 

Not  only  the  so-called  "black-letter"  lawyers  whose 
professional  horizon  was  limited  by  the  metes  and  bounds 
of  the  Common  Law,  but  the  great  body  of  jurists  on  the 
Bench  and  at  the  Bar  were  firm  in  their  adhesion  to  the 
legal  methods  of  the  mother  country.  They  were  more 
than  satisfied  with  the  common  law  as  it  had  been 
moulded  to  meet  the  expanding  needs  of  civilization  and 
commerce  by  Lord  Mansfield  and  with  the  system  of  equity 
jurisprudence  which  had  been  worked  out  through  the 
long  line  of  eminent  Chancellors,  of  whom  Lord  Eldon,  then 
on  the  wool-sack  was  the  last,  and  in  whom  the  genius  of  re- 
form never  found  a  more  consistent  opponent.  Many  of 


21 

the  leading  lawyers  of  New  York  were  by  training  and 
family  and  political  association  tenacious  of  established 
customs  and  violently  opposed  to  change  and  to  men  given 
to  change.  The  idea  of  codification,  although  in  compar- 
ison with  the  cyclonic  proportions  it  has  since  assumed,  a 
cloud  no  bigger  than  a  man's  hand,  was  in  the  air,  a  bale- 
ful portent.  Civilians  were  multiplying  in  the  ranks  of 
jurists  in  England  and  in  the  United  States.  De  Witt 
Clinton,  whose  genius  was  allied  to  commercial  enterprise, 
favored  a  code  in  his  message  at  the  opening  of  the  year 
1825.  He  declared  that  "  the  whole  system  of  our  jurispru- 
dence requires  revised  arrangement  and  correction.  A 
complete  code  founded  on  the  salutary  principles  of 
society,  adapted  to  the  interests  of  commerce  and  the 
useful  arts,  the  state  of  society  and  the  nature  of  our  gov- 
ernment, and  embracing  those  improvements  which  are  en- 
joyed by  enlightened  experience,  would  be  a  public 
blessing.  It  would  free  our  laws  from  uncertainty,  elevate 
a  liberal  and  honorable  profession  and  utterly  destroy 
judicial  legislation,  which  is  fundamentally  at  war  with  the 
principles  of  representative  government." 

While  the  Tory  journals  were  inveighing  against  the  in- 
novators who  would  sacrifice  everything  that  was  ancient 
and  venerable  on  their  "  shrine  of  simplicity"  and  declar- 
ing that  the  word  "code"  had  something  imperial  and 
arbitrary  in  its  sound  which  grated  on  the  ears  of  a  disciple 
of  Bracton  or  Littleton,  the  Edinburgh  Review  called  atten- 
tion to  the  fact  that  New  York  had  "resumed  with  in- 
creasing patience  its  habitual  work  of  reform  ;"*  and  while 
the  commission  appointed  by  Parliament  in  1824  had  only 
recommended  some  measures  of  reform  for  consideration, 
the  Revisers  were  accomplishing  in  fact  what  in  England 
was  merely  discussed  as  theory. 

Against  these  innovating  tendencies  the  whole  body  of 
the  profession  was  arrayed.  The  plan  of  the  Revised 
Statutes  was  devised  in  the  presence  of  a  sentiment  which 

*Edinburgh  Review,  March,  1827,  p  481. 


22 

warned  the  Revisers  that  any  attempt  to  import  Conti- 
nental or  civil  law  methods  into  the  jurisprudence  of  the 
State,  would  be  an  act  of  treason  to  the  Bench  and  the  Bar. 
They  could  hardly  escape  the  suspicion  of  being  at  least  in- 
fected with  these  treasonable  projects  and  with  a  disposi- 
tion to  give  aid  and  comfort  to  their  abettors.  Fortunately 
they  had  the  spirit  of  reformers  without  the  rage  of  icon- 
oclasts. They  publicly  declared  that  their  work  was  not 
intended  to  be  codification.  Their  earliest  report  to  the 
Legislature  says  that  "the  practicability  and  advantages  of 
reducing  the  Common  Law  of  England  to  a  written  code  has 
recently  been  maintained  in  that  country  by  several 
writers.  In  this  country,  also,  similar  opinions  have  been 
advanced  by  some  of  our  ablest  jurists,  and  we  think  those 
opinions  are  gradually  gaining  ground  in  both  countries. 
On  the  other  hand,  a  majority  of  the  legal  profession  in 
each  is  averse  to  the  scheme."  To  codify  the  whole  law  or 
any  branch  of  it  in  the  sense  of  substituting  positive 
written  definitions  and  enactments  for  the  law  as  existing  in 
the  common  law  and  equity  systems  and  as  interpreted  and 
applied  by  the  Courts,  was  never  the  intention  or  aim  of  the 
Revisers,  or  any  one  of  them.  They  publicly  declared  that 
the  work  they  had  in  charge  "must  be  carefully  distin- 
guished from  codification.  *  *  We  have  found  it  neces- 
sary in  our  report  to  exclude  this  idea  which  has  got  abroad 
and  exposed  us  to  much  prejudice  with  those  who  believe 
every  project  of  that  sort  visionary  and  dangerous." 

To  use  the  formula  employed  by  an  inventor  in  assert- 
ing and  describing,  for  the  purpose  of  securing  a  patent, 
the  substance  of  what  he  supposes  to  be  new  and 
useful  in  his  invention,  what  I  claim  on  behalf  of  the 
authors  of  the  project  of  the  Revision,  as  exhibited  in 
the  original  paper  of  May  11,  1825,  is,  that  it  was  the 
first  attempt  to  create  and  establish  for  any  commonwealth 
governed  by  the  English  Common  Law,  and  by  legislative 
statutes,  after  the  manner  of  the  English  Parliament,  of  a 
body  of  written  law,  systematically  arranged,  based  on  the 
principles  of  the  law  as  a  science,  regulating  the  exercise 


23 

of  public  and  private  rights,  establishing  domestic,  prop- 
erty and  contract  relations,  and  covering  the  administra- 
tion of  every  department  of  the  Government,  without 
touching  the  integrity  of  the  unwritten  law,  or  transcend- 
ing the  proper  bounds  of  legislative  control.  More  than 
this,  it  was  the  first  attempt  to  so  organize  the  statute  law 
of  an  English-speaking  race,  as  to  retain  and  apply  all  the 
great  and  beneficial  principles  of  the  Common  Law,  while 
rejecting  and  casting  off  those  parts  of  it  which  were  alien 
to  the  genius  of  a  State  in  which  the  feudal  system  of 
England  had  never  taken  root,  or  been  transplanted  and 
where  free  institutions  were  in  revolt  against  its  old  abuses. 

The  general  plan  having  been  settled  upon,  the  Revisers 
immediately  entered  on  the  work  of  preparing  for  the 
coming  session  of  the  Legislature.  The  first  installment  of 
their  work  was  intended  to  present  an  outline  of  the  entire 
plan,  and  to  embrace  the  initial  chapters  of  the  Revision. 

During  the  summer  of  1 825,  Mr.  Duer,  who  was  engaged 
in  New  York  on  Chapter  V,  relating  to  Elections,  wrote  on 
August  23,  to  his  colleague  at  Albany,  enclosing  the 
chapter,  and  saying:  "In  compiling  it,  I  am  sensible 
I  have  carried,  to  their  full  extent,  the  powers  that  the 
Legislature  have  given  us.  I  have,  however,  made  no 
changes  or  additions  for  which  there  did  not  appear  a  suffi- 
cient reason  to  my  own  mind,  but  to  explain  the  reasons 
would  require  a  dissertation,  and  I  prefer  leaving  the  sub- 
ject without  any  remarks  of  my  own,  to  your  unprejudiced 
judgment,  and  I  beg  you  to  examine  the  whole  with  care 
and  criticise  with  freedom.  If  you  are  satisfied  with  the 
plan  and  arrangement,  then  direct  your  minute  attention  to 
the  style  and  diction,  and  mark  every  ambiguous,  obscure, 
improper  and  superfluous  sentence,  phrase,  or  word.  Let 
us  act  and  labor  under  the  belief  that  we  are  working  for 
posterity,  and  that  great  results  are  dependent  (as  I  am 
convinced  they  are)  upon  our  success."  He  adds  that  he 
is  going  on  with -Chapter  II,  which  he  says  "  will  give  me 
more  occupation  than  I  expected." 

His  Albany    colleague  was    meanwhile  employed    on 


24 

Chapter  I,  which  according  to  the  orderly  plan  of  arrange- 
ment was  to  treat  of  the  boundaries  of  the  State  and  its 
territorial  jurisdiction. 

"  It  is  a  singular  fact,"  noted  by  the  Revisers,  in  re- 
porting this  chapter  that  "  no  complete  account  of  the 
bounds  of  the  State,  as  now  established  and  claimed,  is  to  be 
found  in  any  printed  work  or  public  record."  The  sources 
of  a  correct  description  of  the  territory  of  the  State  included 
royal  patents  and  charters,  and  conventions  with  neighbor- 
ing States,  and  other  public  documents.  With  the  assist- 
ance of  the  Surveyor  General,  the  metes  and  bounds  of 
the  Empire  State,  as  actually  in  possession  of  its  sovereign 
people,  were  for  the  first  time  ascertained  and  defined. 

This  formed  the  initial  chapter  of  the  Revised  Statutes, 
an  adaptation,  to  some  extent,  of  the  Domesday  Acts,  and 
of  the  descriptions  of  the  possessions  of  the  twelve  tribes 
of  Israel  given  in  the  Book  of  Joshua. 

Then  followed,  by  way  of  exception,  a  title  describing 
the  places  ceded  by  the  State  of  New  York  to  the  United 
States.  The  second  chapter  embraced  similarly  minute 
descriptions  of  the  civil  divisions  of  the  State,  the  Coun- 
ties, Senatorial  and  Congressional  districts,  towns  and 
cities.  Most  of  these  were,  however,  published  as  local 
acts,  by  way  of  addition  to  the  third  volume  of  the 
Statutes,  so  as  not  to  encumber  the  main  work  with  formal 
matters. 

The  Legislature  of  1826  met  on  the  3d  day  of  January. 
The  Revisers  were  alive  to  the  importance  of  making  their 
first  report  in  such  form  as  to  create  a  favorable  impres- 
sion on  the  members  of  both  Houses.  A  letter  to  Messrs. 
Duer  and  Wheaton,  from  their  associate,  dated  January  18, 
1826,  says  :  "As  the  report  would  be,  to  us  at  least,  an  im- 
portant document,  great  pains  should  be  taken  in  drawing 
it  up.  Our  best  faculties  must  be  put  in  requisition  and  I 
have  sketched,  and  now  enclose  to  you,  an  outline  of  the 
topics  to  be  discussed  in  it." 

Mr.  Duer  wrote  in  reply :  "the  task  of  preparing  our  re- 
port seems  to  devolve  ex -necessitate  on  yourself."  The  re- 


25 

port  was  accordingly  prepared  and  submitted  March  14,1826. 
It  contains  the  first  public  announcement  of  the  plan  of  the 
Revision,  and  gives  a  clear  analysis  of  the  various  subjects 
to  be  embraced  in  the  scope  of  a  complete  system  of  public 
Statutory  Law,  marking  out  the  general  division  into  Parts, 
and  the  subdivision  into  Chapters,  and  Titles  as  indicated 
in  outline  in  the  original  plan  of  May  11,  1825,  thus 
placing  clearly  before  the  Legislature  and  the  public  the 
idea  of  a  systematic  body  of  Statutory  Law,  to  be  perma- 
nent in  its  form,  and  all-embracing  in  respect  to  the  ad- 
ministration of  the  Government  in  its  various  departments. 
The  report  presented  only  Chapter  V  ' ;  Of  Elections,  other 
than  for  Town  Officers  "  but  with  full  details  of  the  intended 
character  of  the  work  of  which  that  chapter  was  a  specimen. 

The  reception  of  the  report  both  by  the  Legislature  and 
the  profession  was  more  favorable  than  the  Revisers  had 
dared  to  anticipate. 

As  an  indication  of  this  Mr.  Duer  writes  on  March  30, 
1826,  that  Peter  W.  Radcliff,  an  old  New  York  lawyer, 
' '  has  taken  occasion  to  express  to  me  in  strong  terms,  his 
approbation  of  our  plan  and  proceedings.  From  him  this 
was  unexpected  and  gratifying.  I  thought  him  a  stickler 
for  the  black-letter  school." 

That  the  utmost  pains  had  been  taken  in  the  preparation 
of  the  initial  Chapters  is  evident  from  the  correspondence. 
The  freest  criticism  was  interchanged  between  the  Revisers. 
In  one  of  the  Albany  letters  the  writer  says:  "The  gen- 
eral method  suggested  last  Spring,  was  probably  right  in 
principle  but  in  detail  exceedingly  defective.  Perfect  method 
is  probably  unattainable  and  I  am  inclined  to  think  with 
you  that  we  shall  find  it  necessary,  as  well  for  this  as  on 
other  accounts,  to  retain  the  work  until  the  whole  is  com- 
pleted. *  *  You  cannot  treat  of  any  science,  even  in  the 
most  familiar  manner,  without  employing  at  the  very  out- 
set, terms  of  art,  a  full  knowledge  of  which  can  only  be  ob- 
tained by  referring  to  subsequent  parts  of  the  work,  perhaps 
not  until  the  whole  science  be  mastered. ' '  The  writer  goes  on 
to  say  that  he  has  taken  up  the  Chapter  relating  to  the  du- 


26 

ties  of  towns  and  counties  (Chapter  XI),  and  the  subject 
of  taxes  and  assessments,  and  while  admitting  the  great 
difficulty  of  the  task,  declares  his  intention  of  proceeding 
according  to  the  original  design  in  the  effort  to  bring  order 
out  of  the  existing  confused  and  complicated  mass  of  the 
Statutes. 

Stimulated,  perhaps,  by  the  reception  accorded  to  their 
labors,  the  Revisers  took  heart  to  proceed.  Mr.  Wheaton 
was,  however,  engrossed  with  his  duties  as  Reporter  and 
in  the  completion  of  his  volume  of  Reports,  and  Mr.  Duer 
was  taken  up  with  his  professional  engagements  in  ~New 
York.  He  writes  on  June  10,  1826,  to  Mr.  Butler,  stating 
these  interruptions,  and  closes  by  saying :  "I  am  resolved 
to  be  proud  of  your  labors,  as  I  cannot  exult  in  my  own. 
The  truth  is  (and  we  both  agree),  that  you  are  worth  a 
dozen  of  such  lazy  fellows  as  Wheaton  and  myself." 

At  the  re-assembling  of  the  Legislature  in  January, 
1827,  the  Revisers  reported  Chapters  I,  II  and  III.  Also 
Chapter  IV  (substituted  for  the  chapter  of  that  number  as 
originally  proposed),  containing  a  re-enactment  of  the  Bill 
of  Rights  of  1787,  which, they  say,  ought  to  have  a  permanent 
place  in  the  statute  book,  and  on  January  30,  1827,  they 
presented  Chapter  V  "  Of  the  Civil  officers  of  the  State"  fol- 
lowed in  rapid  succession  by  Chapters  VI,  VII,  VIII,  IX, 
X,  XI  and  XIX.  Chapter  IX  and  Chapter  XIX  related 
to  the  whole  financial  department  of  the  State  government. 
In  relation  to  Chapters  V  and  VI  Mr.  Butler  writes  to 
Mr.  Duer  :  "I  send  you  Chapters  V  and  VI,  which  were 
prepared  sometime  ago,  though  not  copied  till  lately.  In 
framing  the  former,  you  will  see  that  I  have  drawn  liberally 
on  the  powers  conferred  on  us  and  I  have  added  many  new 
provisions."  He  adds,  "I  propose  next  to  take  up  the 
Highway  A  cts.  I  can  labor  on  them  without  interfering  with 
you  or  Wheaton." 

By  this  time  the  work  had  advanced  sufficiently  to  at- 
tract a  general  interest  and  to  excite  the  Legislature 
to  effective  co-operation.  An  extra  session  for  the  pur- 


27 

pose  of  considering  the  Revised  Statutes  was  resolved  upon 
and  the  Legislature  adjourned  on  April  17,  1827,  to  the 
second  Tuesday  of  the  following  September. 

Meanwhile,  in  March,  1827,  Mr.  Wheaton  had  resigned 
and  Mr.  Spencer  had  been  appointed,  April  21,  1827,  to 
fill  the  vacancy,  and  had  at  once  engaged  in  the  work  and 
taken  an  active  part  in  the  preparation  of  Chapter  IX, 

JOHN  C.  SPENCER,  who  now  became  identified  with  the 
revision,  had  enjoyed  advantages  of  early  education  superior 
to  those  of  either  of  his  associates.  He  was  born  at  Hud- 
son, Columbia  County,  BT.  Y.,  January  6, 1788.  His  father, 
Ambrose  Spencer,  was  Attorney  General  of  this  State  from 
1802  to  1804,  a  Justice  of  the  Supreme  Court  from  1804  to 
1819  and  its  Chief  Justice  from  1819  to  1823.  The  son  was 
trained  from  boyhood  for  the  Bar,  and  after  graduating 
at  Union  College  with  distinction,  pursued  his  law  studies  in 
his  father's  office.  During  the  administration  of  Governor 
Tompkins  he  was  his  private  secretary,  a  position  which 
gave  him  an  early  practical  acquaintance  with  the  routine 
of  work  in  the  Executive  Department,  and  great  familiarity 
with  legislative  proceedings.  He  was  admitted  to  the  Bar 
at  the  age  of  23,  and  shortly  afterwards  removed  from 
Albany  to  Canandaigua,  then  a  remote  village  in  a  new 
region  of  the  State.  Here  he  soon  became  both  a  political 
and  a  professional  leader.  His  bold  and  vigorous  ad- 
vocacy of  the  policy  and  measures  of  Madison,  which  pre- 
ceded the  war  with  Great  Britain  of  1812,  made  him  con- 
spicuous among  the  supporters  of  the  President  and  of 
Tompkins,  the  war  Governor  of  that  day,  but  after  peace 
was  restored,  in  the  succeeding  changes  of  party  relations, 
he  became  an  ally  and  friend  of  DeWitt  Clinton.  By  him 
he  was  appointed  in  1815  District  Attorney  for  the  District 
embracing  the  five  western  counties  of  the  State,  and  while 
holding  this  office,  was  elected  as  a  representative  in  the 
fifteenth  Congress,  in  which  he  was  an  active  member.  His 
term  as  representative  was  signalized  by  his  work  as  chair- 


28 

man  of  the  commission  to  investigate  the  United  States 
Bank  ;  he  prepared  the  adverse  report  as  to  the  Bank,  which 
was  the  result  of  the  labors  of  the  commission,  and  which 
preceded  by  fifteen  years  the  final  onslaught  against  the 
same  corporation  under  the  administration  of  General 
Jackson. 

In  1820  he  was  elected  a  member  of  the  State  Legisla- 
ture, and  served  as  Speaker  of  the  Assembly,  to  which  body 
he  was  again  returned  the  following  year,  but  as  a  member 
of  the  minority.  In  1824  he  was  elected  to  the  State  Senate 
and  thus  became  a  member  of  the  Court  for  the  Correction 
of  Errors.  During  his  term  as  Senator,  as  Chairman  of  the 
Committee  on  Literature  and  Education,  he  made  an  elabo- 
rate and  masterly  report  on  the  Common  School  system  and 
the  whole  subject  of  education  as  connected  with  the  State. 
Thoroughly  furnished  with  this  varied  equipment,  Mr. 
Spencer  brought  to  the  work  of  the  Revision  the  qualifica- 
tions which  fitted  him  to  supplement,  with  the  greatest  ef- 
ficiency, the  efforts  of  his  colleagues.  He  was  an  indefatiga- 
ble worker,  of  great  power  of  endurance  and  matchless 
assiduity  in  details.  He  engaged  in  the  Revision  with 
characteristic  ardor  and  readily  assumed  a  large  share  of 
the  labor  which  it  imposed. 

During  the  interval  between  the  adjournment  of  the 
regular  session  and  the  opening  of  the  extra  session  of 
1827,  much  progress  was  made. 

Mr.  Duer  seems  to  have  determined  to  clear  himself  from 
his  own  imputation  of  laziness  and  on  May  19th,  writes,  "  I 
am  at  work,  as  the  boys  say,  in  real  earnest."  "  I  found," 
he  continues,  "that,  make  what  resolution  I  would,  so 
long  as  I  continued  to  attend  the  office,  I  could  do  noth- 
ing effectual.  My  time  was  not  in  my  own  power.  I  there- 
fore concluded  to  shut  myself  up  at  home,  and  have 
found  the  course  so  profitable,  that  I  shall  continue 
to  pursue  it.  *  I  have  finished  the  Canal  Laws. 

They  comprise  in  nine  articles  about  two  hundred  sec- 
tions. I  have  received  Spencer's  analysis 


29 

of  the  Second  Part  but  have  not  yet  had  leisure  to  consider 
it  as  it  must  be  considered.  Upon  a  cursory  inspection,  the 
general  arrangement  appears  to  me  excellent,  but  the 
subdivision  of  chapters  far  too  numerous."  Then  he  says, 
"I  am  satisfied  that  we  shall  have  to  work,  each  of  us,  on 
an  average  eight  or  ten  hours  a  day,  to  enable  us  to  com- 
plete our  work.  It  is  impossible  that  Spencer  should  do 
all  we  have  allotted  to  him,  and  we  must  endeavor  to  have 
the  first  part  completed  before  the  adjournment  of  the 
Court  of  Errors,  if  possible,  by  its  meeting,  and  then  assist 
him  in  completing  the  second.  In  the  meantime,  I  take 
upon  myself  the  chapters  of  Public  Health,  of  Incorpora- 
tions, of  Trusts,  &c." 

On  June  1,  1827,  he  writes  :  "I  have  continued  to  work 
very  assiduously,  of  which  you  will  receive  as  a  sufficient 
proof  that,  in  three  days,  I  have  completed  the  chapter  of 
Public  Health,  with  the  exception  of  a  few  penalties  that 
remain  to  be  added.  It  is  completely  a  new  law,  as  well  in 
language  as  in  arrangement.  Before  I  send  it  to  you  I 
shall  submit  it  to  the  Health  Commissioners  for  examina- 
tion." 

In  reply  to  this  is  a  letter  dated  Albany,  June  2d,  1827, 
containing  these  cheering  words  : 

"I  rejoice  in  your  successful  exertions,  and  feel  assured 
that  all  will  go  well.  Spencer  is  vigorously  engaged.  I 
have  received  two  letters  from  him  this  week,  the  last  to- 
day. In  it  he  sends  me  Chapter  III  of  Dower.  It  is  well 
done,  so  well  that  he  feels  proud  of  it,  and  wishes  us  to  ex- 
amine it  immediately,  with  the  view  of  presenting  it  to 
Chancellor  Kent.  He  thinks  the  Chancellor's  approbation 
worth  obtaining,  and  what  is,  perhaps,  a  little  enthusiastic, 
he  cannot  doubt  as  to  securing  it  by  this  chapter.  Spencer 
is  evidently  heart  and  soul  in  the  work  and  will  give  us  all 
the  aid  we  expected  from  him." 

Mr.  Spencer's  letter  refers  to  the  apprehensions  of  some 
members  of  the  profession  which  have  been  excited  "  from 
various  causes,  some  unworthy,  and  others  entitled  to  con- 
sideration. Among  them  is  Chancellor  Kent.  I  want  to 


30 

satisfy  him,  and  at  the  same  time  commit  him  to  an  appro- 
bation of  our  plan.  With  this  in  view  I  have  had  an  entire 
copy  made  of  the  chapter  that  I  have  revised  and  prepared 
of  Dower,  which  I  propose  submitting  to  him  in  manu- 
script for  his  advice  and  opinion.  *  *  It  is  very  possi- 
ble that  like  all  authors,  I  have  mistaken  the  nature  of  this 
particular  chapter,  but  if  I  do  not  deceive  myself,  it  is  not 
discreditable.  I  am  hard  at  work  on  the  statutes  of  frauds, 
13  and  27  Eliz.,  and  39  and  4  W.  and  M.  I  shall  conquer 
them." 

In  reply  to  this,  Mr.  Butler  writes  : 

"  I  agree  that  the  good  opinion  of  Chancellor  Kent 
would  be  of  the  greatest  service,  and  without  intending  an 
idle  compliment,  I  do  verily  believe  that  if  any  thing  could  re- 
move the  prejudice  with  which  he  is  said  to  regard  our  labors, 
your  consolidation  of  the  law  of  Dower  would  effect  that 
end.  After  what  I  have  said  you  may  think  I  do  injus- 
tice to  Chancellor  Kent,  when  I  add  that  I  have  no  confi- 
dence in  the  success  of  the  proposed  reference  to  him.  The 
grounds  of  his  distrust  it  would  take  me  too  long  to  explain 
in  writing.  Dies  indicabit." 

In  one  of  Mr.  Duer's  letters,  in  the  summer  of  1827,  he 
speaks  of  the  encouragement  he  had  received  from  a  visit 
to  his  office  by  Thomas  Addis  Emmet,  then  the  brilliant 
and  accomplished  leader  of  the  New  York  Bar,  who  was  in 
full  sympathy  with  the  work  of  the  Revisers,  and  who 
came  to  Mr.  Duer  to  fulfil  a  promise  to  give  him  in  writing, 
some  suggestions  touching  the  law  of  Descents.  This  visit 
occurred  only  a  short  time  before  Mr.  Emmet's  sudden 
death,  November  14,  1827,  in  Court  during  the  trial  of  the 
cause  in  which  was  involved  the  title  to  the  lands  of  the 
Sailor's  Snug  Harbor.  Mr.  Yan  Buren,  in  his  autobiogra- 
phy, a  work  as  yet  unpublished,  gives  a  graphic  descrip- 
tion of  Mr.  Emmet's  death,  of  which  he  was  an  eye-wit- 
ness : 

"In  the  fall  of  the  year  Thomas  Addis  Emmet  was 
seized  with  paralysis  whilst  engaged  in  the  trial  of  a  cause, 
and  died  almost  immediately.  I  was  one  of  the  opposing 
counsel  in  the  cause,  and  as  the  Court  adjourned  on  the 
preceding  day  he  expressed  to  me  his  surprise  that  we  had 


31 

kept  our  suit,  the  claim  of  Bishop  Inglis  of  Xova  Scotia 
to  the  immense  estate  called  the  Sailor's  Snug  Harbor,  on 
foot  so  long  ;  but  added  that  we  could  not  prolong  its  life 
beyond  twelve  o'clock  of  the  next  day.  When  that  time 
arrived,  I  followed  him  from  the  Bar  to  the  stove,  whither 
he  had  been  called  by  an  acquaintance,  and  said,  '  Well, 
Mr.  Emmet,  the  hour  has  come,  and  we  are  alive  yet ! ' 
'  Yes,'  he  answered,  'but  you  cannot  live  much  longer  ! ' 
Immediately  after  my  return  to  my  seat  David  B.  Ogden 
said  to  me,  '  Look  at  Emmet !  He  is  going  to  have  a  fit ! ' 
I  looked  and  replied  that  it  was  a  mistake.  In  a  few  min- 
utes he  repeated  the  alarm  more  emphatically.  I  went  to 
Chief -Justice  Thompson,  before  whom  the  cause  was  tried, 
and  informed  him  of  Mr.  Ogden1  s  suspicions.  The  Judge 
observed  Mr.  E.  closely,  and  replied  pleasantly,  '  No  !  no  ! 
Ogden  is  mistaken,  his  underlip  hangs  a  little  lower  than 
usual,  but  that  is  natural  to  him  when  he  is  writing  ! '  At 
that  instant,  and  as  I  turned  towards  my  seat  I  saw  Mr. 
Emmet  reel  in  his  chair,  and  extend  his  hand  towards  a 
neighboring  pillar.  I  endeavored  to  intercept  his  fall,  but 
without  success  ;  he  was  carried  to  his  house,  and  died  in 
a  few  hours." 

Mr.  Duer  had  a  lively  sense  of  the  necessity  of  leaving 
the  Legislature  as  little  to  do  as  possible  in  the  task  of 
considering  the  Revision. 

He  writes  June  6,  1827,  as  to  the  importance  of  printing 
at  the  head  of  every  new  chapter  an  analysis  with  referen- 
ces to  the  former  statutes  ;  "We  cannot  do  too  much  to  facili- 
tate the  examination  of  the  members.  Their  gratitude  will 
be  exactly  in  proportion  to  the  extent  of  the  labor  from 
which  we  relieve  them,  and  we  shall  relieve  ourselves  from  a 
multitude  of  objections,  such  as  Brown  of  Chautauqua  made 
to  the  chapter  of  the  Militia." 

In  a  later  letter  Mr.  Duer  reports  as  to  the  Chapter  on 
Descents,  apparently  drawn  by  his  Albany  colleague,  and 
closes  with  an  expression  of  personal  feeling,  which 
may  serve  to  exhibit  the  relations  which  had  grown 
up/  in  the  course  of  their  labors,  between  the  Re- 
visers :  "This  'letter,  which  I  close  with  reluctance, 
is  intended,  of  course,  for  Mr.  Spencer  as  well  as  your- 
self. I  do  trust  that  our  mutual  labors  have  laid  the 


32 

foundation  of  a  friendship  which  is  to  cheer  and  con- 
sole us  during  life.  It  will  not  be  in  vain  that  we  have 
passed  together  so  many  useful,  virtuous  and  happy  hours. 
We  have  learned  a  good  deal  of  our  own  hearts  and  of  the 
characters  of  each  other.  We  have  been  taught  to  bear  and 
forbear  under  very  trying  circumstances,  and  have  found 
that  the  jealousies  and  irritations  of  the  hour  passed  away 
and  our  mutual  confidence  and  regard  became  more  solid 
and  permanent.  Let  us  continue  to  be  just  to  each  other 
and  true  to  ourselves  and  the  triple  cord  that  we  have  twisted 
will  not  soon  be  broken." 

t 

The  extra  Session  of  the  Legislature  convened  Septem- 
ber 11,  1827,  and  as  declared  by  the  resolution  appointing 
it,  was  held  for  the  sole  and  only  purpose  of  examining  and 
re-enacting  the  Revision  of  the  Statute  Laws  of  this  State. 
On  the  first  day  of  the  session  the  Revisers  submitted  the 
whole  of  the  First  Part  in  twenty  chapters  and  during  the 
session  these  and  also  all  the  chapters  of  the  Second  Part, 
except  Chapter  I,  were  presented  and  acted  upon. 

The  Legislature  adopt  elaborate  joint  rules  under 
which  the  different  chapters  were  referred  to  joint  commit- 
tees of  the  two  houses,  before  whom  the  Revisers  were  to 
attend  to  assist  them  in  their  deliberations  ;  the  chapters  as 
reported  from  the  committees  were  considered  by  each 
house  and  after  being  passed  upon,  were  referred  again  to 
the  Revisers  for  their  examination,  with  power  to  propose 
amendments,  and  under  this  systematic  plan  the  examina- 
tion of  the  work  proceeded  in  the  committees  and  in  the 
two  houses,  with  regularity  and  ease.  The  most  painstak- 
ing scrutiny  was  exercised  and  the  Revisers  were  enabled 
by  their  final  supervision,  to  guard  against  injudicious 
alteration  by  the  many  amendments  proposed  in  the 
committees.  Their  recommendations  as  they  say  in  the 
Introduction  to  the  Second  Edition  "were  almost  always 
adopted  and  in  general  without  discussion." 

\ 

The  session  lasted  from  September  12,   1827,  to  Decem- 
ber 4,  1827,  fifty-three  days. 


33 

It  was  characterized,  say  the  Revisers,  "by  patient 
research  and  untiring  industry  on  the  part  of  the  members  " 
and  resulted  in  the  enactment  of  the  entire  First  and  Sec- 
ond Parts  of  the  Revised  Statutes  except  Chapter  I  of  the 
Second  Part,  which  was  laid  over  until  the  next  meeting  of 
the  Legislature. 


It  was  in  the  Second  Part  of  the  proposed  system  of 
Administrative  Law  and  especially  in  the  First  Chapter,  thus 
postponed  by  the  Legislature,  that  the  Revisers  brought  the 
law-making  power  face  to  face  with  the  real  substance  of 
the  reform  they  proposed. 

The  First  Part  dealt  with  the  territorial  limits  and  divis- 
ions, the  civil  polity  and  internal  administration  of  the  State 
and  was  concerned  with  the  affairs  of  municipalities,  the 
regulation  of  incorporations  and  of  trade,  and  of  the  inter- 
nal police,  creating  a  system  which  representatives  of  the 
people  could  well  understand,  with  the  rudiments  of  which 
they  were  familiar  and  which,  when  placed  before  them  in 
an  orderly  and  perspicuous  arrangement,  at  once  attracted 
their  concurrence  and  acquiescence. 

The  Second  Part  brought  them  into  the  intricacies  of  the 
law  relating  to  the  rights  of  property,  real  and  personal, 
their  acquisition,  descent,  enjoyment  and  transmission, 
reaching  to  the  root  and  central  stem  of  the  entangled 
growth  of  the  unwritten  law  of  tenures,  uses,  trusts  and 
devises.  The  complexity  of  the  law  of  real  estate,  the  out- 
come of  the  feudal  system  of  tenures  gave  rise,  as  Black- 
stone  had  said,  "  to  the  subtelties  and  refinements  into 
which,  in  the  course  of  centuries,  they  were  spun  out  and 
subdivided." 

The  lawyers  and  judges  of  England  united  in  perpetu- 
ating rules  and  enforcing  methods  as  to  the  title  to  land 
which  it  became  almost  impossible  to  apply  with  any  cer- 
tainty or  safety.  -The  evil  became  so  oppressive  that  in  re- 
spect to  this  branch  of  the  law,  as  well  as  to  other  branches, 


34 

the  cry  for  reform  had  gone  up  from  the  ranks  of  the  pro- 
fession itself. 

The  obscurity  of  titles,  the  great  hazard  and)  expense  of 
alienation,  the  frequent  and  ruinous  litigation  in  which  es- 
tates were  involved,  led  to  those  efforts  in  Parliament  in 
which  Brougham  and  his  associates  strove  with  only  partial 
success  to  attack  the  abuses  of  the  feudal  system  as  perpetu- 
ated by  the  Courts  in  England.  Even  to  clear  and  honest 
minds  this  task  seemed  almost  too  formidable.  The  vast 
political  considerations  it  involved,  were  too  momentous. 
The  change  of  the  law  of  real  estate  meant  the  disturbance 
of  the  whole  framework  of  society. 

Meanwhile,  the  law  of  real  property  described  by  Mr. 
Cruise,  one  of  its  most  learned  commentators,  "as  the  most 
extensive  and  abstruse  branch  of  English  jurisprudence," 
remained,  as  the  Revisers  say,  "very  imperfectly  under- 
stood by  any  of  the  legal  profession  who  have  not  made  it 
an  object  of  peculiar  study  and  attention,  and  so  remote 
are  its  principles  and  maxims  from  ordinary  apprehension, 
that  to  the  mass  of  the  community  they  seem  to  be  shrouded 
in  impenetrable  mystery." 

This  whole  vast  subject,  including  the  law  of  estates  in 
expectancy,  of  remainders  vested  and  contingent,  of  uses 
and  trusts,  formal,  active  and  passive,  of  forfeitures,  fines 
and  recovery,  of  powers  appendant  and  appurtenant,  collat- 
eral or  in  gross,  was  enshrined  with  its  cabalistic  terms  and 
its  ensnaring  devices  in  the  chaotic  mass  of  the  unwritten 
Common  Law,  the  undefined  powers  of  Chancery,  the  dicta 
of  judges,  and  Acts  of  Parliament,  which  as  interpreted  in 
Westminster  Hall,  served  only  to  make  the  confusion  in 
which  the  system  was  involved  worse  confounded. 

While  English  Courts  were  struggling  in  the  network  of 
legal  fictions  and  devices  by  which  the  law  of  the  kingdom 
was  to  retain  the  enslaving  impress  of  the  feudal  system, 
long  after  the  people  had  broken  down  all  its  other  barriers, 
the  Revisers  believed  that  the  hindrances  to  the  work  of 
reform  in  the  mother  country  had  no  place  here. 

True,  the  whole  law  of  real  estate  had  been,  as  far  as 


3o 

possible,  transferred  to  this  side  of  the  ocean  and  was  being 
administered  in  our  Courts  by  men  who  delighted  in  its 
subtleties  and  fictions,  but  the  Revisers  were  bold  enough 
to  strike  out  measures  of  reform  by  which,  while  retaining 
all  that  was  really  serviceable  in  the  existing  system,  they 
might  break  away,  once  and  forever,  from  the  bondage  of  a 
barbarous  age  perpetuated  by  generations  of  black-letter 
judges. 

"Our  law  of  real  estate  "  they  say  "  is  not  an  uniform 
and  consistent  system,  complex  only  from  the  multitude  of 
its  rules  and  the  variety  of  its  details  ;  but  it  embraces  two 
sets  of  distinct  and  opposite  maxims,  different  in  origin 
and  hostile  in  principle.  We  have  first,  the  rules  of  the 
common  law  connected  throughout  with  the  doctrine  of 
tenures,  and  meant  and  adapted  to  maintain  the  feudal  sys- 
tem in  all  its  rigor  ;  and  we  have  next,  an  elaborate  system 
of  expedients,  very  artificial  and  ingenious,  devised  in  the 
course  of  ages  by  courts  and  lawyers,  with  some  aid  from 
the  legislature,  for  the  express  purpose  of  evading  the  rules 
of  the  Common  Law,  both  in  respect  to  the  qualities  and 
the  alienation  of  estates,  and  to  introduce  modifications  of 
property  before  prohibited  or  unknown.  It  is  the  conflict 
continued  through  centuries  between  these  hostile  systems 
that  has  generated  that  infinity  of  subtleties  and  refinements 
with  which  this  branch  of  our  jurisprudence  is  overloaded.  " 

They  laid  the  axe  to  the  root  of  the  tree  of  feudal  tenures 
and  feudal  restrictions.  The  keynote  of  their  reform  was 
struck  in  these  plain  declarations,  which,  simple  and  nec- 
essary as  they  seem  to  us,  were  a  new  language  in  the  ears 
of  many  of  their  generation,  who  were  accustomed  only  to 
receive  what  had  been  said  by  them  of  old  time. 

"  The  interests  of  society  require  that  the  power  of  the 
owner  to  fetter  the  alienation  and  suspend  the  ownership 
of  an  estate  by  future  limitations  should  be  confined  within 
certain  limits;"  and,  after  stating  the  evils  and  abuses 
incident  to  the  existing  law,  they  add:  "The  remedy 
seems  to  the  Revisers  obvious  and  effectual :  it  is  to  abolish 
all  technical  rules  and  distinctions,  having  no  relation  to 
the  essential  nature  of  property  and  the  means  of  its  bene- 
ficial enjoyment,  but  which,  derived  from  the  feudal  sys- 


36 

tern,  rest  solely  upon  feudal  reasons.  *  *  The  princi- 
ples by  which  they  have  been  governed  in  proposing 
alterations,  may  be  very  briefly  stated.  If  a  rule  of  law  is 
just  and  wise  in  itself,  apply  it  universally  as  far  as  the 
reasons  upon  which  it  is  founded  extend,  and  in  no 
instance  permit  it  to  be  evaded  ;  if  it  is  irrational  and 
foolish,  or  the  reasons  upon  which  it  is  rested  are  obsolete, 
abolish  it  at  once." 

They  point  out,  in  later  sentences,  that  their  proposed 
provisions,  if  adopted, "  will  sweep  away  an  immense  mass  of 
useless  refinements  and  distinctions  ;  will  relieve  the  law 
of  real  property  to  a  great  extent  from  its  abstruseness  and 
uncertainty,  and  render  it,  as  a  system,  intelligible  and 
consistent. "  "In  England, ' '  they  further  say  ' '  the  continu- 
ance of  the  landed  property  in  the  hands  of  the  aristocracy  is 
the  basis  upon  which  the  monarchy  itself  may  be  said  to 
rest,  but,  with  us,  it  should  never  be  forgotten  that  it  is  the 
partibility,  the  frequent  division  and  unchecked  alienation 
of  property,  that  are  essential  to  the  health  and  vigor  of 
our  republican  institutions. ' ' 

It  is  impossible  for  me  to  go  into  details,  either  as  to 
the  evils  and  abuses  which  the  Revisers  undertook  to 
cure  by  their  new  system  of  written  rules  governing  this 
entire  field  of  the  law  as  well  as  its  cognate  branches,  dealt 
with  in  the  second  part  of  the  Revised  Statutes,  or  as  to  the 
character  and  reasons  of  the  radical  and  far-reaching  rem- 
edies they  created.  The  student  of  our  law,  who  would 
acquaint  himself  with  these  particulars,  must  find  them  in 
the  volumes  of  the  reports  of  the  Revisers,  in  which  are  dis- 
played a  wealth  of  learning,  of  research,  of  careful  analysis 
and  discrimination,  of  painstaking  and  conscientious  appli- 
cation of  the  true  principles  of  law  and  justice  to  the  rights 
of  the  people.  It  is  in  these  reports,  and  especially  in  the 
notes  accompanying  the  statutes  as  first  reported,  that  the 
work  of  the  Revision  is  to  be  seen  in  an  interior  light  which 
reveals  the  marvelous  industry  and  minute  care  bestowed 
upon  it.  Probably,  very  few  members  of  our  profession 
have  ever  had  the  time,  or  the  inclination,  or  even  the  occa- 


37 

sion,  to  pursue  this  study,  and  I  presume  there  are  not 
many  copies  of  these  reports  extant,  but  they  embody  a 
whole  commentary  on  the  then  existing  state  of  the  law. 

The  first  edition  of  the  Revised  Statutes  did  not  contain 
the  Reports  or  the  notes  which  accompanied  them. 

"  In  these  notes,"  says  Judge  Edmunds  in  his  edi- 
tion of  the  Revised  Statutes  of  1863,  "the  profession  have 
felt  that  they  have  often  found,  in  the  language  of  Lord 
Coke,  the  very  lock  and  key  to  set  open  the  windows  of 
the  Statutes."  They  were  published  in  the  second  edition, 
and  will  there  be  found,  as  well  as  in  Judge  Edmunds' 
later  edition,  a  lasting  monument  to  the  research  and  learn- 
ing of  their  authors. 

Nor  is  it  necessary  to  enquire  into  the  wisdom  of  the 
system  of  the  laws  of  real  estate,  which  the  Revisers  pro- 
posed and  secured.  They  had  to  grapple  with  difficulties 
which  were  inherent  in  the  subject,  and  which  they  were 
required  to  solve,  so  as  to  disturb  as  little  as  possible  the 
real  foundations  of  the  law  as  a  necessary  bulwark  of 
society  ;  they  had  to  devise  new  methods,  without  destroy- 
ing established  rights  ;  they  had  to  keep  the  ma  media 
between  old  abuses  and  doubtful  innovations.  It  is 
enough  to  say  that  the  system  they  devised  has  stood  the 
test  of  time,  and  remains  as  little  changed  as  any  part  of 
their  work,  and  as  little  needing  change.  Perhaps  they 
might  have  gone  further  in  the  direction  of  reform,  but  it 
must  be  remembered  that  the  changes  they  proposed  are  to 
be  viewed  in  the  light  of  the  time  in  which  they  lived,  sixty 
years  ago,  before  a  railroad  had  been  laid  in  this  hemis- 
phere, and  when  the  arts  and  appliances  of  modern  civiliza- 
tion were  in  their  infancy.  It  has  been  well  said  that 
•'  it  is  the  creative  part  of  the  reformer's  work  which 
at  once  shows  his  skill  and  produces  real  fruit.  It  is  the 
sagacity  to  devise  the  scheme  of  amendment,  it  is  the 
patience  to  prosecute  it,  the  caution,  the  conciliation,  the 
dexterity,  the  unwearied  perseverance  to  carry  it  through 
all  difficulties  to  a  practical  consummation  ;  these  are  the 


38 

qualities  wanted  for  the  safe  and  judicious  reform  of  the 
law." 

The  extra  session  of  1827  settled  the  question  of  the 
acceptability  of  the  general  plan  of  the  Revision.  No  step 
backward  was  now  to  be  feared.  The  interval  between  the 
adjournment  of  the  Legislature,  December  4,  1827,  and  its 
re-assembling  for  the  regular  session  in  January,  1828,  was 
occupied  by  the  Revisers  in  preparation  for  the  task  of 
carrying  through  the  Legislature  the  more  important  and 
novel  portions  of  their  work  to  which  I  have  referred. 

Their  next  step  forward  brought  the  Revisers  them- 
selves into  the  sphere  of  legislation,  where,  by  their  voices 
and  their  votes  they  were  able  to  aid  in  perfecting  the 
reforms  they  recommended.  Mr.  Spencer  was  elected  to 
the  Legislature  of  1828,  as  a  Senator  from  the  Seventh 
District,  and  Mr.  Butler  as  a  Member  of  the  Assembly 
from  Albany.  Party  politics  ran  high,  as  always  in  the 
Assembly  District  which  includes  the  State  Capital,  and 
the  local  influences  were  adverse  at  the  time  to  the  oppo- 
nents of  Governor  Clinton,  among  whom,  as  a  member  of 
the  Democratic-Republican  party,  Mr.  Butler  was  classed  ; 
but  it  is  a  striking  proof  of  the  popular  interest  which  had 
been  created  in  the  work  of  the  Revision,  that  the  political 
leaders  recognized  the  importance  of  aiding  the  work  by 
the  election  of  one  of  the  Revisers.  Mr.  Hammond,  in  his 
somewhat  desultory  but  entertaining  Political  History  of 
New  York,  says : 

"There  is  no  doubt  a  majority  of  the  electors  in  Albany 
were  opposed  to  General  Jackson  and  his  party.  But  I 
presume  many  of  the  electors  voted  for  Mr.  Butler,  who 
were  against  Jackson,  because  it  was  known  that  the  Re- 
vised Statutes  would  be  acted  upon  by  the  Assembly  then 
to  be  chosen,  and  that  the  services  of  Mr.  Butler  would  be 
highly  benencial  to  the  public  upon  that  occasion.  I  was 
myself  warmly  opposed  to  the  Jackson  party,  and  yet 
voted  for  Mr.  Butler,  for  the  reason  I  have  stated." 

On  the  floor  of  the  Senate  and  the  Assembly  of  1828, 
the  two  Revisers  were  able  to  maintain  and  advance  their 


39 

scheme  of  reform  with  the  great  advantage  of  their  thor- 
ough knowledge  of  the  subject  and  their  high  forensic 
abilities.  They  had  to  meet  all  objections  urged  by  mem- 
bers of  their  own  profession  who  were  fellow- members 
with  them  in  the  Legislature,  and  to  defend  themselves 
against  the  charge  of  innovation  raised  here,  as  in  England, 
by  the  whole  body  of  old-fashioned  lawyers  who  dreaded 
change  and  clung  to  precedent.  In  the  Assembly  Mr. 
Butler  during  the  regular  and  extra  sessions,  made  not  less 
than  five  hundred  or  six  hundred  speeches  on  the  separate 
sections  proposed,  and  in  both  Houses  the  result  of  the 
discussions  was  the  entire  success  of  the  Revision. 

It  was  during  the  session  of  1828  and  on  February  llth 
of  that  year,  that  DeWitt  Clinton,  then  Governor  of  the 
State,  died  suddenly  at  Albany,  ending  a  great  career  and 
leaving  an  enduring  fame.  The  presence  in  the  Assembly, 
as  a  representative  from  the  Capital,  of  one  of  the  Revisers, 
gave  him  the  opportunity  of  advocating  in  the  Legislature 
a  generous  measure  on  behalf  of  the  family  of  Governor 
Clinton,  which  was  all  the  more  appreciated  from  the 
fact  that  it  was  promoted  by  a  political  opponent.  The 
measure,  however,  failed  for  want  of  a  two-thirds  vote. 

The  session  closed  with  the  work  of  the  Revision  still 
unfinished,  and  again  an  extra  session  was  found  necessary. 
It  was  appointed  for  September  9,  1828. 

During  the  recess  the  whole  energies  of  the  Revisers 
were  bent  to  the  completion  of  the  work.  Mr.  Duer 
undertook  the  final  Revision  and  perfecting  of  the  trouble- 
some first  Chapter  of  Part  II,  and  devoted  himself  ex- 
clusively for  six  weeks  to  this  delicate  task.  The  severity 
of  the  labor,  the  pressure  of  his  professional  duties  in  the 
oince  of  United  States  District  Attorney,  to  which  he  had 
been  appointed  in  1827,  by  President  Adams,  and  perhaps 
the  fact  that  their  position  as  members  of  the  Legislature 
and  given  his  associates  superior  facilities  in  the  prosecu- 
tion of  the  work,  led  to  the  withdrawal  of  Mr.  Duer  from 
further  active  participation  in  it.  He  had  no  share  in  the 


40 

preparation  of  the  Third  or  Fourth  Parts,  and  I  gather  from 
the  documents  and  reports  that  with  the  exception  of 
assisting  in  the  preparation  of  the  First  Chapter  of  Part  II 
he  did  no  more  than  to  give  occasional  advice  upon  some  of 
the  provisions  of  the  succeeding  chapters. 

Mr.  Duer's  share  in  the  work  was  thus,  as  we  have  seen, 
specially  in  the  preparation  of  some  of  the  Chapters  of 
Part  I,  particularly  those  relating  to  Elections,  the  Public 
Health  and  of  Incorporations  and  on  Weights  and  Measures, 
and  in  the  First  Chapter  of  the  Second  Part.  The  other 
Chapters  of  the  First  Part  were  either  the  exclusive  work 
of  Mr.  Butler  or  were  in  the  first  instance  prepared  by  him 
and  submitted  to  Mr.  Duer  and  to  Mr.  Wheaton,  so  long  as 
he  was  a  member  of  the  body,  for  their  Revision.  Mr. 
Spencer  had  a  share  in  preparing  some  of  the  Chapters  of 
the  First  Part,  especially  Chapter  IX,  relating  to  the 
Finances  of  the  State,  and  all  of  the  Second  Part  except 
Chapter  I,  and  all  the  Third  and  Fourth  Parts  were  the 
joint  work  of  himself  and  Mr.  Butler.  It  is  impossible  to 
state  with  absolute  accuracy,  by  whom  the  different  Chap- 
ters of  the  Third  and  Fourth  Parts  were  originally  pre- 
pared. 

Mr.  Duer  having  retired,  the  remaining  Revisers  divided 
the  work  between  themselves,  and  were  in  constant  and 
joint  labor,  chiefly  at  Albany.  Each  of  them  had  held  the 
office  of  District  Attorney,  and  thus  were  able  to  co- 
operate intelligently  in  the  preparation  of  the  Fourth  Part, 
relating  to  Crimes  and  their  Punishment,  but  I  believe  that 
the  main  work  in  the  preparation  of  that  part,  devolved  on 
Mr.  Spencer,  while  a  great  portion  of  the  Third  Part  relat- 
ing to  Courts  of  Justice,  suits  and  proceedings,  were  the 
work  of  his  colleague. 

In  the  notes  to  the  Fourth  Part  are  many  interesting  de- 
tails in  reference  to  the  English  Criminal  Law  and  to  those 
statutes  "  written  in  blood,"  which  inflicted  inhuman 
penalties  for  comparatively  venial  offences. 

The  radical  changes  made  by  the  Revisers  were  a  step 


41 

forward,  but  not  too  far,  in  the  interests  of  humanity  as 
well  as  of  justice. 

Some  of  their  recommendations  as  to  crimes  and  their 
punishment  were  not  adopted  by  the  Legislative.  Among 
them  is  a  proposed  section,  imposing  upon  any  landlord 
letting  houses  for  disorderly  purposes,  a  liability  as  aider 
and  abettor  in  the  unlawful  acts  of  the  tenant,  which 
anticipated  some  provisions  subsequently  put  upon  the 
statute  book,  as  a  means  of  resistance  to  the  aggressions 
of  the  forces  arrayed  against  social  order. 

The  Revisers'  note  which  failed  to  impress  the  Legislature 
of  1827  seems  to  me  inspired  by  good  sense  as  well  as  sound 
morals. 

"  If  there  is  any  utility  whatever  in  the  laws  against 
disorderly  houses,  they  should  be  made  effectual  against 
those  who  afford  the  means  of  violating  them.  So  long  as 
owners  of  houses  shall  be  permitted  to  lease  them  at  ex- 
travagant rents  enhanced  by  the  fact  that  they  are  to  be 
used  for  the  worst  purposes,  the  laws  against  such  viola- 
tions of  public  decency  will  be  ineffectual.  *  *  It  is 
believed  that  the  proposed  provision  will  be  more  effectual 
than  any  existing  law." 

The  work  at  Albany,  both  before  and  after  Mr.  Duer's 
withdrawal,  was  done  in  the  office  of  the  resident  Reviser, 
No.  109  State  street.  Mr.  Andrew  J.  Colvin,  one  of  the 
oldest  members  of  our  Bar,  and  who  has  served  the  State 
as  a  Senator,  was  at  that  time  a  student  at  law  in  the  office. 
He  has  given  me  some  interesting  reminiscences  of  the  work. 

He  says  : 

"  In  answer  to  your  inquiry  I  would  say,  that  in  the 
Revision  of  the  statutes  a  great  deal  of  the  work  was  done 
by  your  father,  and  John  Duer,  afterwards  Judge  of  the 
Superior  Court  of  New  York,  in  the  basement  office  of  the 
house  in  which  you  lived.  There  your  father  worked  and 
wrote,  early  and  late,  as  did  Mr.  Duer  also ;  my  recollec- 
tion is  that  the  whole  revision  in  regard  to  uses  and  trusts 
and  powers  was  prepared  by  Mr.  Duer ;  then  copied  by  me, 
for  I  copied  a  considerable  part  of  the  Revision,  and  that 
these  subjects  were  then  taken  up  by  your  father,  and  by 
him  revised  and  corrected.  They  were  then  discussed  and 


42 

further  amended,  and  finally  copied  for  the  printer.  Mr. 
Duer  wrote  a  shocking  hand,  and  I  could  make  little  out 
of  his  scrawlings,  unless  aided  by  him  or  your  father. 

Your  father  and  John  C.  Spencer,  I  think,  prepared  the 
entire  work  on  practice,  pleadings  and  criminal  law.  That 
portion  of  it  relating  to  the  civil  divisions  of  the  State  and 
kindred  subjects,  such  as  Boards  of  Supervisors  and  Courts 
of  limited  jurisdiction,  was  almost  entirely  prepared  by 
your  father,  if  my  memory  is  not  at  fault. 

I  was  a  student  in  your  father's  office  for  about  five 
years. 

After  the  Revision  was  fully  under  way,  your  father 
gave  almost  his  whole  time  to  it,  and  as  I  was  with  him 
early  and  late,  I  saw  a  great  deal  of  him,  and  learned  not 
only  to  respect,  but  to  love  him.  He  never  spoke  to  me  an 
unkind  word  during  the  whole  time  I  was  a  student  with 
him.  He  was  one  of  the  most  amiable  and  excellent  of 
men,  kind-hearted,  gentle  and  tender  ;  and  yet  a  man  of 
great  capacity  and  learning,  with  industry  irrepressible, 
and  with  a  patience  in  going  to  the  bottom  of  any  point  or 
matter  that  he  was  studying,  which  was  untiring. 

To  me  he  was  a  model  man,  and  since  we  separated,  I 
do  not  think  a  day  has  passed  in  which  I  have  not  thought 
of  him,  and  blessed  God  that  the  tender,  forming  years  of 
my  life  were  brought  within  the  influences  of  his  noble  pre- 
cepts and  example." 

The  extra  session  of  1828  convened  September  9,  1828, 
and  terminated  December  10,  1828.  Like  the  former  extra 
session,  it  was  devoted  exclusively  to  the  consideration  of 
the  Revision,  and  the  presence  of  the  Revisers,  made  the 
work  thorough  and  satisfactory. 

In  one  important  particular,  the  Revisers  received  most 
important  aid  from  the  Legislature,  who,  as  will  be  seen, 
had  been  educated  to  a  point  of  reform,  at  which  they  took 
an  advance  step  beyond  the  proposals  of  the  Revisers  and 
became  wiser  than  their  teachers. 

In  no  department  of  the  law  did  fiction  hold  more 
undisputed  sway  than,  in  suits  between  contesting  claim- 
ants to  land. 

By  the  common  law,  laud  could  pass  only  by  actual 


43 

change    of    seisin    and    possession    on    the    soil.     Every 
transfer  of  land  was  required  to  be  open  and  notorious. 

To  avoid  the  inconvenience  which  this  arbitrary  rule 
created,  instead  of  resorting  to  the  power  of  Parliament 
to  enact  a  simple  mode  of  land  transfers  and  of  determin- 
ing disputes  about  land,  the  lawyers  and  judges  invented, 
in  the  action  of  ejectment,  the  most  intricate  and  complex 
of  all  the  fictions  in  which  the  genius  of  the  common  law 
delights. 

Sergeant  Warren,  in  "Ten  Thousand  a  Year,"  has 
given  a  graphic  description  of  this  form  of  action,  which 
he  says  dates  from  the  close  of  Edward  II.  or  beginning  of 
Edward  III.  (A.  D.  1327).  He  explains  how  it  is  that  when 
one  honest  Briton  claims  a  parcel  of  land  of  which  another 
honest  Briton  is  in  possession,  instead  of  the  two  parties 
impleading  each  other,  as  in  any  other  action  to  recover 
money  or  property,  they  are  obliged  to  set  up  a  couple  of 
puppets,  John  Doe  and  Richard  Roe  by  name,  who  fall  upon 
one  another  in  a  very  quaint  fashion,  after  the  manner  of 
Punch  and  Judy.  John  Doe  pretends  to  be  the  real  plain- 
tiff, and  Richard  Roe  the  real  defendant.  John  Doe  says 
that  the  land  which  Richard  Roe  has  is  his,  because  one 
Jones  gave  him  a  lease  of  it,  and  that  he  came  on  the 
premises  where  he  was  met  by  Richard  Roe,  who  ousted 
him  and  thus  became  what  was  termed  in  the  lingo  of  the 
law  the  "  casual  ejector." 

The  attorney  for  John  Doe,  the  fictitious  plaintiff,  an- 
nexed to  his  declaration  a  notice  from  Richard  Roe,  the 
"  casual  ejector,"  to  the  party  really  in  possesion,  notifying 
him  to  appear  within  a  limited  time  and  defend  the  suit,  or 
in  default  of  such  appearance  judgment  will  go  against  the 
casual  ejector  and  the  real  tenant  be  turned  out  of  posses- 
sion. Thereupon  the  real  tenant  comes  into  Court  by  his 
attorney  and  admits  as  true  the  whole  fictitious  narrative 
of  the  declaration,  denying  only  the  superior  title  of  the 
real  claimant.  *' 

When  the  question  of  fact  was  thus  in  a  condition  to  be 
tried,  the  whole  frame  work  of  fiction  disappeared,  having 


44 

served  its  turn  to  bring  the  parties  into  Court.  All  this,  as 
the  little  Marchioness  in  "  Old  Curiosity  Shop  "  would  say, 
"was  making  believe  very  much,"  but  it  was  a  clumsy  sort 
of  contrivance  which  suited  the  Anglo-Saxon  temperament, 
and  which  was  enshrined  as  carefully  in  the  Common  Law 
system  of  the  State  of  New  York,  as  if  it  had  been  the 
corner-stone  of  the  whole  fabric. 

This  rubbish  of  fiction,  the  Revisers  proposed  utterly  to 
abolish  and  destroy.  They  say  in  their  report  on  this 
subject,  that  they  had  received  many  applications  to  do 
away  with  these  absurd  methods,  and  they  took  the  initia- 
tive in  discarding  this  particular  absurdity.  But  in  respect 
to  another  and  older  method  of  asserting  right  to  land  and 
compelling  a  trial  of  the  title,  known  as  "  Fine  and  Recov- 
ery," dating  back  beyond  the  Conquest  and  adopted  in  this 
State  from  its  earliest  settlement,  they  seem  to  have  thought 
it  too  deeply  rooted  in  the  soil  of  real  estate  tenures  to  war- 
rant its  disturbance,  and  so  they  only  proposed  to  modify  it. 

A  "fine"  meant  in  the  jargon  of  the  ancient  law  not,  as 
now  understood,  a  penalty,  but  a  feoifment  (i.  e.  a  deed) 
upon  record,  so  called  because  it  put  an  end  (finis)  to  liti- 
gation :  and  what  was  called  "  levying  a  fine  "  was  a  formal 
proceeding  by  which  a  person  claiming  title  to  land  took 
visible  possession  of  it  under  his  claim,  made  proclamation 
in  open  court  at  four  successive  terms,  advertised  in  an 
official  paper  for  a  certain  time,  posted  a  notice  on  the 
Court  House  door,  and  placed  a  deed  to  somebody  on  record, 
which  being  done,  unless  the  party  in  possession  brought 
an  action  within  five  years  after  the  fine  was  so  levied,  his 
title  was  barred. 

The  Revisers  retained  this  ancient  mode  of  procedure 
with  various  simplifications,  but  also  reported  several  en- 
tirely new  provisions  which  were  so  framed,  that  they 
might  be  taken  as  substitutes  for  fines  and  common  recov- 
eries. When  these  titles  were  taken  up  in  the  Assembly, 
that  body  not  only  approved  the  views  of  the  Revisers  in 
general,  but  carried  them  to  a  still  greater  extent,  and  on 
September  18,  1828,  passed  a  resolution  directing  the  Re- 


45 

visers  to  report  the  titles  so  as  to  abolish  fines  and  recover- 
ies, to  simplify  the  action  of  ejectment  and  other  proceed- 
ings to  compel  the  determination  of  claims  to  real  property, 
and,  upon  this  being  done,  the  Legislature  adopted  them, 
and  by  section  24  of  Title  7  of  Chapter  4  of  Part  III  of  the 
Revised  Statutes  it  was  declared  "that  all  writs  of  rights, 
writs  of  dower,  writs  of  entry  and  writs  of  assize,  all  fines 
and  common  recoveries,  and  all  other  real  actions  known  to 
the  Common  Law,  not  enumerated  and  retained  in  this  chap- 
ter ;  and  all  writs  and  other  process  heretofore  used  in  real 
action,  which  are  not  specially  retained  in  this  chapter, 
shall  be  and  they  are  hereby  abolished." 

And  thus  it  came  to  pass  that  lines  and  recoveries,  as  the 
Court  of  Appeals  say  in  McGregor  vs.  Comstock,  17  N.  Y., 
162,  were  "with  other  antiquities  abolished  and  a  simpler 
system  substituted." 

It  was  not  until  three  years  later,  and  after  the  Revised 
Statutes  had  gone  into  full  operation  and  shown  the  action 
of  ejectment  stripped  of  its  feudal  trappings,  that  England, 
following  the  lead  of  New  York,  enacted  by  3  and  4  Wil- 
liam IV.,  c.  74,  that  no  fine  or  recovery  should  be  levied  or 
suffered  after  December  31,  1833.  But  in  respect  to  the 
action  of  ejectment  the  good  example  of  New  York  bore  no 
fruit  in  the  native  soil  of  John  Doe  and  Richard  Roe,  until 
the  fifteenth  year  of  Queen  Victoria,  when  by  the  Practice 
Act  of  1853  they  were  legislated  out  of  existence  as  parties 
in  ejectment. 

The  extra  Session  of  1828  ended  December  10,  having 
occupied  ninety-one  days,  during  which  the  Legislature 
and  the  Revisers  accomplished  the  design  of  completing 
their  joint  work  before  the  end  of  the  year.  The  entire 
body  of  the  Revised  Statutes  was  adopted  December  10, 
1828.  Those  portions  which  had  been  enacted  at  previous 
sessions  and  which  had  already  taken  effect  and  gone  into 
operation,  consisting  of  Chapers  VI,  VIII,  IX,  X,  XIII 
and  XIV,  Title  II  of  Chapters  XV,  and  Chapters  XVI  and 
XVIII  of  Part  First,  which  took  effect  January  1,  1828,  and 


46 

Chapter  XVII  of  Part  First,  which  took  effect  May  1,  1828, 
were  declared  to  have  taken  effect  at  those  dates  respect- 
ively, and  the  remaining  chapters  were  directed  "  to  com- 
mence and  take  effect  as  laws  on  the  first  day  of  January, 
1830."  The  publication  of  the  entire  Revised  Statutes  in 
three  volumes  was  committed  by  the  Legislature  to  the 
Revisers  with  very  ample  powers  of  alteration  to  conform 
the  statutes  to  any  changes  which  might  be  made  by  the 
Legislature  after  their  passage  and  before  the  final  publica- 
tion. They  were  authorized  to  certify,  by  any  two  of  their 
number,  to  the  correctness  of  the  printed  statutes. 

The  original  text  of  the  entire  Revised  Statutes,  supple- 
mented by  the  Act  of  December  10,  1828,  above  referred  to, 
is  contained  in  a  folio  volume  printed  for  the  Legislature  of 
1828,  by  Packard  &  Van  Benthuysen.  It  is  a  noble  specimen 
of  the  typographical  art,  almost  rivalling  the  famous  classics 
of  Baskerville.  A  few  copies  are  extant.  One  of  them,  a 
gift  of  our  learned  associate,  Judge  Edmonds,  is  in  the 
library  of  the  Association. 

The  several  volumes  were  issued  as  soon  as  completed  ; 
the  official  certificate  prefixed  to  the  first  volume  bears 
date  January  31,  1829,  that  prefixed  to  the  second  volume, 
June  5,  1829,  and  that  prefixed  to  the  third  volume,  Sep- 
tember 10,  1830. 

The  whole  work  of  preparing  the  three  volumes  of  the 
Revised  Statutes  for  publication  with  the  marginal 
notes  and  references,  and  the  index,  which,  as  originally 
published,  was  a  model  of  accuracy  and  completeness, 
was  done  by  Mr.  Butler  and  Mr.  Spencer.  It  involved 
immense  labor,  and  the  closest  application,  as  they  were 
under  an  absolute  responsibility  for  accuracy  to  the  Legisla- 
ture and  the  public,  and  well  knew  that  the  whole  profession 
would  scrutinize  the  work  with  jealous  care.  The  untiring 
and  indefatigable  industry  of  Mr.  Spencer  in  scrutinizing 
every  line  and  word  and  letter  of  the  text  and  of  the  index 
is  shown  by  his  many  letters,  which  are  marvels  of  neat- 
ness, precision  and  exactitude,  alike  in  their  delicate  chir- 
ography  and  in  their  minuteness  and  of  detail.  A  corres- 


47 

ponding  fidelity  in  regard  to  every  item  of  the  compli- 
cated work  was  shown  by  his  colleague. 

The  copyright  of  the  Revised  Statutes  was  the  property 
of  the  State  of  New  York,  and  was  taken  out  in  the  name 
of  Azariah  C.  Flagg,  Secretary  of  State,  in  trust,  for  the 
benefit  of  the  People  of  the  State  of  New  York. 

This  applied,  however,  only  to  the  first  edition,  the  sub- 
sequent editions,  including  the  second  and  third,  which 
were  published  by  the  Revisers,  were  private  undertakings, 
an  Act  of  the  Legislature,  passed  in  1830,  having  provided 
that  any  person  might  publish  the  Revised  Statutes,  and 
that  the  work  so  published  might  be  read  in  evidence  if 
accompanied  with  a  certificate  of  the  Secretary  of  State,  or 
two  of  the  Revisers,  but  all  editions  are  required  to  be 
paged  in  conformity  to  the  first  edition. 

To  judges  and  lawyers  unaccustomed  to  Codes,  the  ap- 
pearance of  the  Revised  Statutes  was  an  event  of  the  first 
magnitude. 

It  came  upon  the  profession  at  a  time  when  the  earlier 
agitation  of  questions  of  reform  in  England  had  demon- 
strated the  need  of  change  and  improvement,  without  in- 
troducing any  new  methods  to  supersede  old  abuses. 

The  fact  that  a  whole  system,  embracing  almost  all  the 
projected  reforms  about  which  English  jurists  were  debat- 
ing, had  come  into  being,  with  the  absolute  force  of  law, 
was  almost  a  surprise,  notwithstanding  the  years  of  prepar- 
atory work  during  which  it  had  been  carried  on. 

The  Revisers  had  done  their  part  in  creating  a  sound 
public  opinion  in  favor  of  their  work,  by  publishing 
in  advance  the  main  portions  of  the  new  Statutes.  Mr. 
Spencer,  with  his  accustomed  industry,  had  in  a  series  of 
articles  in  the  Ontario  Messenger,  the  local  journal  of  his 
district,  given  an  outline  of  the  proposed  changes  in  the 
Statutes,  and  by  this  and  other  publications,  the  profession 
had  been  advised'bf  the  leading  features  of  the  work. 

In  the  main  the  judges  and  the  lawyers  accepted  the 
new  system  with  favor.  But,  as  always,  when  changes  are 


48 

inaugurated,  some  doubted.  Judge  Roosevelt,  to  whom  I 
have  already  ref erred,  told  me  that  the  old  lawyers  would 
not  examine  the  new  Statutes  with  sufficient  care  to  note 
the  alterations  they  made,  and  most  of  them  took  counsel 
of  their  prejudices.  As  an  instance,  he  related  an  incident, 
which  I  give,  in  substance,  in  his  own  words.  An  old  citizen 
of  New  York,  named  Boardman,  who  lived  on  Broadway, 
next  door  but  one  above  Park  Place,  by  his  last  will  and  tes- 
tament devised  certain  real  estate  to  a  son,  giving  him 
an  estate  for  life  with  remainder  to  his  heirs.  The  will  was 
made  before  the  Revised  Statutes  took  effect ;  the  testator 
died  after  they  took  effect ;  the  devisee  submitted  the  will 
to  Peter  A.  Jay  for  his  opinion  as  to  the  estate  devised. 

Meeting  Mr.  Jay,  and  knowing  that  the  will  had  been 
submitted  to  him,  Roosevelt  asked  him  if  he  had  given  his 
opinion.  "  Yes,"  said  he.  "And  did  you  give  an  opinion 
that  the  son  took  an  estate  in  fee  ?"  "  Certainly  ;  why  not, 
under  the  rule  in  Shelley's  case  f  "But,"  said  Roose- 
velt, "the  Revised  Statutes  have  changed  all  that,  and 
abolished  the  rule  in  Shelley's  case."  "What  have  the 
Revised  Statutes  got  to  do  with  a  will  made  before  they 
took  effect?"  was  Mr.  Jay's  rejoinder,  to  which  Roosevelt 
said :  "If  you  will  look  at  Section  Twenty-eight  of  the 
first  Chapter  of  Part  Two,  you  will  see  that  it  applies  to 
this  will."  Mr.  Jay  went  and  looked,  and  found  a  plain 
provision  changing  the  English  judicial  rule  of  construc- 
tion, which  had  been  in  force  ever  since  the  twenty-first 
year  of  the  reign  of  Queen  Elizabeth. 

Shelley's  case  grew  out  of  a  family  quarrel  over  an  in- 
heritance in  which  Queen  Elizabeth  so  far  intermeddled  in 
her  capacity  of  the  "  Fountain  of  all  Justice  and  Life  of 
the  Law,"  as  Lord  Coke  describes  her,  on  the  pretext  of 
preventing,  as  he  further  says,  "long,  tedious  and  charge- 
able suits  between  parties  near  in  blood  and  gentlemen  of 
good  and  ancient  family,"  as  to  summon  all  the  Justices 
of  England  of  the  Courts  of  Queens  Bench  and  the  Com- 
mon Pleas  and  the  Barons  of  the  Exchequer  to  resolve  the 
question  in  dispute.  This  was,  simply,  whether  the  estate 


49 

in  certain  lands  of  Edward  Shelley,  the  common  ancestor, 
and  his  wife  Joan,  vested  in  them  with  remainder  limited 
to  their  heirs,  was  a  life  estate  or  a  fee.  One  branch  of  the 
Shelley  family  claimed  under  a  deed  made  by  Edward 
Shelley  after  his  wife's  death,  and  the  other  branch  claimed 
by  descent  from  the  same  Edward,  whose  deed  they  sought 
to  avoid  because,  as  they  claimed,  he  took  only  a  life 
estate. 

After  argument  and  reargument,  judgment  was  finally 
given,  that  Edward  Shelley  and  his  wife,  Joan,  took  an 
estate  in  fee,  and  the  rule  which  thus  passed  into  the  juris- 
prudence of  England  as  the  rule  in  Shelley's  case,  deter- 
mined that,  however  contrary  to  the  intent  of  the  person 
creating  the  estate,  a  grantee  or  devisee  takes  the  fee  even 
when  given  with  an  express  limitation  in  favor  of  his 
heirs. 

This  rule  operated  very  often  to  defeat  the  intention  of 
grantors  and  testators,  not  by  a  statute,  but  by  a, technical 
judge-made  rule  turning  on  the  particular  word,  "  heirs." 
For  if  the  grant  were  to  a  grantee  for  life,  with  remainder 
to  his  issue,  the  remainder  was  good,  and  he  took  only  a 
life  estate,  but  if  the  unlucky  testator  or  grantor,  or  his 
conveyancer,  used  the  word  "heirs,"  instead  of  "issue," 
he  gave  a  fee.  Again,  the  rule  might  be  evaded  by  giving 
an  estate  for  years  to  the  first  taker.  Thus  it  was  founded 
on  no  reason  possibly  applicable  in  this  State,  and  yet  it 
had  been  slavishly  followed  by  our  Courts  as  an  integral 
part  of  the  English  Common  Law  of  real  property,  until 
swept  away  by  the  section  to  which  Mr.  Jay  was  referred 
by  Judge  Roosevelt. 

It  still  remains  in  full  force  in  England,  and  is  there 
claimed  to  be  binding  as  a  rule  of  law  not  dependent  on 
the  construction  of  the  grant  or  will  nor  the  intent  of  the 
grantor  or  testator. 

Although  the  end  had  thus  happily  crowned  the  work, 
it  had  not  been  unattended  by  the  anxieties  and  discour- 


60 

agements  which  never  fail  to  visit  the  path  of  earnest  toil- 
ers in  unaccustomed  fields.  The  sense  of  responsibility, 
the  dread  of  failure,  the  keen  apprehension  of  unjust  criti- 
cism, and  above  all,  the  fear  of  coming  short  of  the  mark 
which  they  had  themselves  set  as  the  standard  of  a  true 
performance,  gave  many  anxious  and  foreboding  hours  to 
the  Revisers,  whose  disquieting  thoughts  are  expressed  in 
the  correspondence,  often  revealing  the  deep  despondency 
and  anxiety  which  overclouded  all  their  anticipations  of 
success. 

Time  would  fail  me  to  point  out,  in  detail,  the  many  im- 
provements in  our  law  which  owe  their  origin  wholly  to  the 
work  of  the  Revisers. 

Enough  has  been  said  to  illustrate  its  general  method, 
and  to  indicate  with  what  caution  and  wisdom  the  plan  of 
reproducing  whatever  in  the  law  of  England  could  be 
simplified  and  made  to  accord  with  our  needs  was  so  pur- 
sued as  to  leaven  the  old  lump  of  feudalism  with  the  new 
leaven  of  democracy. 

The  Revisers  seem  to  have  had  in  mind,  and  to  have 
kept  in  mind,  the  wise  injunction  of  Burke,  that  4l  when  the 
useful  parts  of  an  old  establishment  are  kept,  and  what  is 
superseded  is  fitted  to  what  is  retained,  a  vigorous  mind, 
steady  persevering  attention,  various  powers  of  compari- 
son and  combination,  and  the  resources  of  an  understand- 
ing fruitful  in  expedients,  are  to  be  exercised." 

With  the  exception  of  the  Bill  of  Rights,  every  section 
of  the  entire  work  was  substantially  original  in  the  form  in 
which  it  appears  in  the  Revised  Statutes,  and  it  may  be 
claimed  for  the  Revisers  that  while  Blackstone  in  his  Com- 
mentaries had  presented  the  great  body  of  the  unwritten 
law  of  England  as  an  orderly  system  for  the  student,  and 
as  a  guide  in  the  administration  of  justice,  they  first  gave 
it  form  and  reality  as  the  supreme  rule  for  every  function 
of  the  governing  power. 

No  better  summary  of  the  plan  and  the  performance  of 
their  work,  has  been  given  than  that  contained  in  the  ad- 
dress of  William  Kent,  son  of  the  Chancellor,  and  for  some 


61 

time  a  Judge  of  the  Circuit,  in  this  city,  in  his  address  at 
the  meeting  of  the  Bar,  in  memory  of  his  lifelong  friend 
the  last  survivor  of  the  three  co-workers. 

Speaking  of  the  Revised  Statutes,  Judge  Kent  said  : 
"You,  Mr.  Chairman,  remember,  as  I  do,  the  reluctance 
and  apprehension  with  which  those  laws  were  received.  All 
changes  in  a  nation's  laws  unavoidably  produce  inconven- 
ience, and  familiarity  and  study  are  necessary  to  produce 
a  general  acknowledgment  of  their  benefit.  This  acknowl- 
edgment the  Revised  Statutes  have  now  received  from  even 
the  seniors  of  the  profession.  The  principle  of  the  revision 
was  wise  and  conservative.  Acknowledged  evils  only  were 
removed  ;  doubts  were  cleared  away  ;  the  doctrines  of  im- 
portant decisions  were  extended ;  anomalies  were  sup- 
pressed or  reconciled  ;  but  still  the  essence  of  the  old  laws 
was  preserved,  and  even  the  habits  of  the  lawyers  were 
wisely  respected.  The  peculiarity  of  the  common  law  it- 
self appears  to  have  been  the  guiding  rule  of  the  Revisers, 
and  the  Statutes  were  formed,  not  on  the  model  of  an  inex- 
orable and  abstract  system,  but  in  accordance  with  the  cus- 
toms and  wants  of  the  profession  and  the  nation.  This 
code  was  not  the  direct  and  arbitrary  statute,  going  straight 
to  its  object,  like  the  cannon  ball,  shattering  what  it  reaches 
and  shattering  that  it  may  reach,  but  resembled  the  vil- 
lage road  described  in  the  beautiful  lines  in  Wallenstein  : 

'  The  road  the  human  being  travels, 

That  on  which  Blessing  comes  and  goes,  doth  follow 
The  river's  course,  the  valley's  playful  windings, 

Curves  round  the  cornfield  and  the  hill  of  vines, 
Honoring  the  holy  bounds  of  property.' 

I  may  be  permitted  to  add  what  follows  : 

"I  am  not  able  to  make  partition  of  merit  among  the 
three  distinguished  men  who  performed  this  great  legal 
work.  We  know  that  some  of  the  most  important  chapters 
were  the  production  of  him  (Judge  Duer),  whose  exuberant 
learning  and  talents  received  recently  a  touching  and  elo- 
quent eulogy  from  Mr.  Butler  himself,  in  this  vicinity. 
All  who  know  the  hardy  genius  and  indomitable  energy  of 
John  C.  Spencer,  will  readily  believe  that  his  spirit  per- 
vaded the  whole  work.  But  judging  only  from  internal 
evidence,  I  cannot  avoid  believing  that  much  of  the  essen- 
tial excellence  of  the  Revised  Statutes,  and  more  of  the 
labor  which  adapted  them  to  our  general  system  of  juris- 


52 

prudence,  the  plan  and  order  of  the  work,  the  correctness 
of  its  style,  the  learning  of  the  notes,  the  marginal  refer- 
ences, and  the  admirable  index  which  accompanied  it, 
should  be  ascribed  to  the  lima  labor,  the  patient  touches 
of  unwearied  art,  bestowed  by  the  skill  and  matchless  assi- 
duity of  Mr.  Butler. 

Side  by  side  with  this  tribute  let  me  place  another 
which  has  come  to  me,  and  in  which  one  of  our  ablest 
and  most  experienced  jurists,  speaking  thirty  years  later 
than  Judge  Kent,  gives  testimony  equally  clear  and  em- 
phatic as  to  the  work  and  its  authors. 

WASHINGTON,  Jan.  17th,  1889. 
WM.  ALLEN  BUTLEK,  Esq., 

Dear  Sir.— I  regret  not  to  be  able  to  attend  the  presenta- 
tion of  the  portraits  of  John  Duer,  Benjamin  F.  Butler  and 
John  C.  Spencer  to  the  Bar  Association  of  New  York  City, 
on  the  22d  instant.  I  have  always  had  the  highest  admi- 
ration for  those  able  and  accomplished  jurists,  and  owe 
them  personally  a  large  debt  of  gratitude.  In  1828,  in 
December,  there  was  a  Special  Session  of  the  Legislature 
for  considering  the  amendments  which  had  been  proposed 
to  the  Revised  Statutes.  Mr.  Spencer  had  been  elected  a 
member  of  the  Senate  for  the  special  purpose  of  explaining 
these  amendments  and  carrying  them  through.  I  resided 
at  that  time  in  my  native  place,  Bern,  Albany  County,  but 
happened  to  be  spending  some  weeks  in  Albany  whilst  the 
Legislature  was  sitting,  and  attended  every  day  in  the  gal- 
lery to  hear  the  lucid  and  luminous  explanations  which 
Mr.  Spencer  gave  to  the  various  laws.  His  fluent  and  ac- 
curate speech,  and  far  reaching  views  made  a  deep  impres- 
sion upon  me  and  gave  me  the  first  stimulus  in  the  direction 
of  legal  studies.  The  work  accomplished  by  the  Revisers 
was  not  only  one  of  great  utility  in  bringing  together  and 
harmonizing  the  various  statutes  relating  to  the  same  sub- 
ject, over  the  whole  field  of  statute  law,  but  it  exhibited  an 
analytical  symmetry  and  beauty .  which  are  themselves 
worthy  of  every  student's  attention.  No  better  analysis 
can  be  framed  of  the  municipal  law  of  a  State  than  that 
which  forms  the  basis  of  the  Revised  Statutes  of  New  York. 
They  are  in  this,  as  well  as  in  other  respects,  worthy  to 
stand  by  the  side  of  the  Revised  Statutes  of  Rome,  made 


53 

under  the  auspices  of  Justitian  and  usually  called  the 
Codex  or  Code,  though  having  no  resemblance  to  what  is 
understood,  in  modern  times,  as  a  Code. 

I  never  had  any  personal  acquaintance  with  Mr.  Spencer, 
and  only  knew  him  as  the  expounder  of  the  Revised  Stat- 
utes. With  the  other  Revisers,  it  was  my  good  fortune  to 
have  some  personal  intercourse,  which  I  highly  valued.  I 
had  the  honor  to  be  associated  with  your  father  (Mr.  But- 
ler), in  1855,  in  my  first  argument  before  the  Supreme  Court 
of  the  United  States,  in  the  great  case  of  Murray's  Lessee 
vs.  Hoboken  Land  and  Improvement  Company,  in  which 
the  question  of  due  process  of  law  was  discussed.  Mr.  But- 
ler, of  coarse,  took  the  lead  and  argued  the  Constitutional 
question,  and  argued  it  with  wonderful  learning  and  ability. 
1  can  never  forget  the  kindness  and  considerate  attention 
which  I  received  from  him  during  our  conferences  on  the 
case.  His  wealth  of  learning  and  the  freedom  with  which 
he  imparted  his  views  to  one  so  much  younger  than  himself 
won  my  sincerest  regard.  Judge  Duer  I  often  met  at  the 
house  of  my  brother-in-law,  Judge  Woodruff,  his  associate 
on  the  Bench  of  the  Superior  Court.  His  learning  in  the 
law,  his  various  acquirements,  his  rich  discourse  and  charm 
of  manner,  can  never  be  forgotten  by  those  who  have  had 
the  opportunity  of  social  intercourse  with  him. 

I  cannot  resist  the  desire  of  paying  my  feeble  tribute  to 
the  memory  of  those  great  men. 

Sincerely  yours, 

JOSEPH  P.  BRADLEY. 

At  the  time  the  Revised  Statutes,  as  an  active  system, 
went  into  operation,  January  1,  1830,  the  Supreme  Court 
was  composed  of  Chief  Justice  Savage  and  Judges  Suther- 
land and  Marcy.  The  Judges  of  the  eight  Circuits  were, 
most  of  them,  men  of  exceptional  ability,  whose  names 
are  familiar  to  us— Ogden  Edwards,  James  Emott  the 
elder,  James  Vanderpoel,  Esek  Cowen,  Nathan  Williams, 
Samuel  Nelson,  Daniel  Moseley  and  Addison  Gardiner. 
Greene  C.  Bronson  was  Attorney-General  of  the  State. 

The  first  mention  of  the  Revised  Statutes  in  the  Reports 
is  in  the  case  of  Watts  vs.  the  Public  Administrator,  4 
Wendell,  168,  involving  the  validity  of  the  will  of  John  G. 
Leake,  a  wealthy  bachelor  and  recluse  in  the  city  of 
New  York,  and  a  member  of  the  legal  profession,  who 


54 

died  in  June,  1820,  leaving  no  relatives.  A  will,  in  his  own 
handwriting,  without  date,  unsigned  and  not  attested,  was 
found  at  the  bottom  of  an  iron  chest.  It  gave  the  bulk  of 
his  estate  to  Robert  Watts,  a  son  of  his  friend  John  Watts, 
on  condition  of  changing  his  name  to  Leake  ;  in  case  of 
his  refusal  to  comply  with  the  condition,  or  of  his  dying 
without  issue,  the  estate  was  to  vest  in  trustees  for  the 
maintenance  of  an  orphan  asylum. 

This  will  was  void  as  to  the  testator's  real  estate,  situ- 
ated in  several  interior  counties,  which  escheated  to  the 
State,  but  it  was  admitted  to  probate  by  the  Surrogate  of 
New  York  as  a  will  of  personal  property. 

Chancellor  Walworth,  on  appeal,  reversed  the  Surro- 
gate's decree  and  ordered  letters  of  administrations  to  issue 
to  the  Public  Administrator  (1  Paige,  383).  The  Court  of 
Errors,  in  turn,  reversed  the  Chancellor  by  a  vote  of 
seventeen  to  nine  (4  Wendell,  168). 

In  the  meantime  the  Revisers  had  taken  up  the  subject 
of  wills  of  personal  property,  and  finding,  as  they  say  in 
their  notes,  that  "  the  law  and  practice  of  the  Ecclesiastical 
Courts  have,  until  a  recent  period,  been  hidden  mysteries," 
they  placed  the  execution  of  wills  of  real  and  personal  prop- 
erty under  the  same  rule  and  prescribed  a  like  mode  of 
execution  and  attestation  for  both. 

England  followed  this  reform  by  the  Statute  of  Victoria, 
which  took  effect  in  1838. 

When  the  Leake  will  case  came  to  the  Court  of  Errors, 
where,  as  appears  from  the  original  printed  brief  for  the 
appellants,  in  my  possession,  the  counsel  were  John  V. 
Henry,  Peter  A.  Jay  and  Benjamin  F.  Butler,  opposed  by 
I.  Platt  and  David  B.  Ogden,  the  new  provisions  of  the 
Revised  Statutes  were  in  force,  and  the  Reporter  contents 
himself  with  saying  that  "although  the  case  was  argued 
by  the  counsel  with  more  than  usual  ability,  and  the 
opinions  of  the  Judges  evince  the  fullest  consideration  of 
the  principles  of  law  applicable  to  the  subject,  still  the 
Revised  Statutes  of  this  State  which  went  into  operation 
on  the  1st  January,  1830,  having  placed  wills  of  personal 


property  on  the  same  footing  with  wills  of  real  estate,  this 
case  and  the  decision  of  it  have  become  more  a  matter  of 
curious  interest,  than  of  practical  use." 

The  result  of  the  Leake  will  case  was  that  on  the  death 
of  Robert  Watts,  without  issue,  his  father,  who  was  his 
sole  next-of-kin,  generously  relinquished  all  right  to  the 
estate,  and  the  personal  property  was  applied  to  the  creation 
of  the  Leake  and  Watts  Orphan  Asylum,  a  most  beneficent 
institution,  which  for  many  years  has  occupied  the  com- 
manding site  recently  purchased  for  the  proposed  cathedral 
of  the  Protestant  Episcopal  Church,  the  Orphan  House 
trustees  having  selected  a  more  remote  suburban  property. 

The  State  of  New  York  retains  in  its  Common  School 
fund  a  sum  of  at  least  one  hundred  thousand  dollars,  the 
proceeds  of  the  testator's  real  estate,  as  an  escheat,  one  of 
the  grounds  on  which  the  Legislature  has  refused  repeated 
applications  for  its  release  in  aid  of  the  charity  for  which 
it  was  intended,  being  that,  as  Leake  was  a  lawyer,  he 
ought  to  have  known  better  than  to  make  a  void  will,  thus 
visiting  this  sin  of  a  childless  testator  upon  the  orphans 
of  other  fathers  for  untold  generations. 

The  first  reported  case  in  which  the  provisions  of  the 
Revised  Statutes  are  cited  and  applied  is  Curtis  vs.  Staring, 
4  Wendell,  198,  a  question  of  practice  as  to  the  review 
of  a  decision  by  referees.  During  the  same  term  the  new 
regulations  were  frequently  enforced. 

The  earliest  case  of  prominent  importance  involving  a 
construction  of  provisions  of  the  Revised  Statutes  introduc- 
ing radical  changes  in  the  law,  arose  in  1835  in  the  well 
known  and  leading  case  of  Lorillard  vs.  Coster  (5th  Wen- 
dell, 172,  14  Id.,  265.) 

George  Lorillard  died  in  September,  1832,  a  bachelor, 
possessed  of  an  estate  valued  at  about  $3,000,000,  most  of 
which  was  real  property  in  the  city  of  New  York,  the 
annual  income -being  at  the  time  of  his  death  between 
$80,000  and  $100,000.  By  his  will  made  in  October,  1831, 
after  the  Revised  Statutes  had  gone  into  effect,  he  gave  the 


56 

bulk  of  his  property  to  his  executors,  as  trustees,  for  the 
benefit  of  twelve  nephews  and  nieces,  who  were  to  enjoy 
the  income,  and  at  the  expiration  of  two  years  after  the 
death  of  all  of  them,  the  estate  was  to  be  divided  equally 
among  all  their  children  and  grandchildren  per  stirpes. 
The  provisions  of  the  will  as  to  the  trust  thus  created,  set 
in  motion  a  protracted  controversy  as  to  the  intent  and 
effect  of  the  new  provisions  of  the  Revised  Statutes,  in 
reference  to  the  power  of  the  owners  of  estates  to  fetter 
their  alienation  and  suspend  their  ownership,  and  also  the 
provisions  by  which  the  statutes  sought  to  reach  a  modified 
abolition  of  uses  and  trusts. 

In  this  litigation  the  parties  in  interest  sought  the  pro- 
fessional services  of  the  Revisers  themselves,  all  of  whom 
were  retained  in  the  cause  and  took  part,  on  different  sides, 
in  the  argument.  The  report  of  the  case  in  the  Court  of 
last  resort  contains,  in  the  opinions  of  Chief  Justice  Savage, 
Judge  Nelson  and  Senators  Mason,  Young  and  Tracy,  a 
splendid  encomium  on  the  work  of  the  Revisers  in  this 
department  of  the  law.  The  Court  unanimously  held  that 
the  attempted  suspension  of  the  alienation  of  the  trust 
estate  during  a  period  of  twelve  lives,  was  wholly  void  as 
against  the  provisions  of  the  Revised  Statutes,  and  estab- 
lished the  principle  which  has  since  been  invariably  applied, 
that  every  testamentary  disposition  since  the  Revision  took 
effect  must  be  tested  by  these  provisions.  Chief  Justice 
Savage,  in  the  course  of  his  opinion,  says : 

"It  is  known  to  us  all,  that  preparatory  to  the  late  Re- 
vision of  the  statutes,  the  work  of  revising,  analyzing,  col- 
lating, composing,  and,  if  there  were  such  a  word,  codifying, 
and  presenting  to  the  Legislature  in  a  new  form  the  statutes 
of  the  State,  was  committed  to  three  gentlemen,  distin- 
guished for  their  legal  learning,  their  ability  and  their  in- 
dustry. The  result  of  their  labors  is  before  us  in  their  re- 
port to  the  Legislature.  Whenever  their  recommendations 
have  been  adopted  by  the  Legislature,  and  their  notes  have 
declared  the  object  in  view  in  plain  language,  free  from  all 
technicality,  we  may  safely  pursue  that  object,  and  in  the 
path  pointed  out." 

He  then  reviews  the  observations  of  the  Revisers  in  their 


57 

notes  npon  the  sections  applicable  to  the  case,  and  declares 
that  in  their  effort  "  to  extricate  this  branch  of  the  law 
from  the  perplexity  and  obscurity  in  which  it  was  before 
involved,  they  have  certainly  succeeded  to  a  very  great  ex- 
tent if  not  entirely." 

As  to  uses,  trusts  and  powers  characterized  by  the  Re- 
visers as  probably  the  most  intricate  department  in  all  our 
jurisprudence,  the  Chief  Justice  approves  their  course  when, 
as  he  says : 

"Instead  of  endeavoring  to  unravel  the  mysteries  of  uses 
and  trusts,  or  to  cast  light  into  the  numerous  dark  and 
winding  passages  of  the  labyrinth  of  powers,  they  de- 
molished the  whole.  The  learned  antiquarian  will  pause 
and  ponder  over  this  vast  pile  of  ruins  ;  venerable,  at 
least,  for  their  antiquity,  the  erection  of  which  occupied 
centuries  and  put  in  requisition  the  labors  of  kings,  eccle- 
siastics and  laymen.  Upon  these  ruins  have  been  erected 
new  edifices — a  new  system  of  uses  and  trusts,  apparently 
plain  and  intelligible,  and  adapted  to  the  real  wants  of  so- 
ciety ;  but  whether  it  is  so  in  reality  is  yet  to  be  proved. 
Instead  of  the  labyrinth  of  powers,  we  have  a  new  building 
of  modern  architecture,  through  which  I  hope  we  may  pass 
with  safety,  with  such  clue  as  the  Revisers  have  furnished." 

Senator  Young,  after  commenting  upon  the  sections  in 
question,  says : 

"  The  language  of  these  several  sections  tend  to  one 
simple  object — the  entire  abrogation,  the  utter  repeal  of  all 
Common  Law  tenures,  with  all  their  complicated  incidents 
and  appurtenances  ;  and  the  substitution  in  their  stead  of 
a  new  tenure,  and  new  trusts,  uses  and  powers  adapted  to 
the  simplicity  of  our  institutions.  The  constitution  of  this 
State  authorizes  the  abrogation  of  the  Common  Law  ;  and 
unless  this  ancient,  complicated  and  barbarous  system  exer- 
cises a  power  and  a  thraldom  over  us,  superior  to  the  con- 
stitution and  laws,  it  is  entirely  abrogated  in  relation  to  the 
tenure,  the  acquisition,  the  enjoyment  and  the  transmission 
of  property,  both  real  and  personal.  *  *  But  if 

we  are  not  yet  emancipated,  if  we  are  still  afloat  on  the 
fathomless  abyss  of  metaphysical  subtleties  ;  if  we  must 
steer  our  devious  track  among  springing  and  secondary 
uses,  resulting  trusts,  executory  devises  and  cross  remain- 
ders ;  if  the  statute  is  subordinate  only,  and  must  be  sub- 
jected to  the  ordeal,  to  the  red  hot  ploughshares  of  the 


58 

Common  Law,  we  are  then  in  a  situation  infinitely  worse 
than  before  the  Revision.  For  if  the  statute  is  to  be  con- 
strued as  in  any  way  subordinate  to  the  old  system,  there 
will  then  be  a  double  conflict  of  technicalities,  the  Statute 
warring  against  the  Common  Law,  and  the  Common  Law 
against  the  Statute  ;  confusion  will  be  worse  confounded  ; 
and  every  cause  involving  principles  like  the  present  will 
be  an  insoluble  enigma." 

The  determination  of  the  Court  of  Errors  to  maintain 
in  its  integrity  the  new  system  originated  by  the  Revised 
Statutes  in  reference  to  testamentary  trusts  and  the  aliena- 
tion of  estates  was  soon  again  exhibited  in  the  decision 
upon  the  will  of  William  James,  of  Albany,  in  the  famous 
case  of  Hawley  vs.  James,  reported  in  5  Wendell,  317,  and 
16  Wendell,  61. 

Here,  as  in  the  case  of  Lorillard's  will,  the  decree  of 
Chancellor  Walworth,  upholding  the  will  in  respect  to 
its  general  scheme,  was  reversed  and  the  main  trusts 
declared  void,  as  in  violation  of  the  Revised  Statutes. 
Two  of  the  Revisers,  Mr.  Butler  and  Mr.  Spencer,  were 
among  the  counsel  in  this  case,  and  the  opinions  of  the 
members  of  the  Court  are  strong  and  clear  in  their  declara- 
tions of  an  intent  to  give  effect  to  the  statutes  controlling 
the  case,  wholly  irrespective  of  antecedent  rules  or  ideas. 

Judge  Bronson  says : 

"  To  give  effect  to  the  statute  in  the  spirit  in  which  it 
was  enacted,  we  must,  as  far  as  practicable,  eradicate 
from  our  minds  all  that  we  have  learned  in  relation  to  the 
doctrine  of  trusts  as  they  existed  before  the  late  Revision. 

*  *  *  We  may  resort  to  the  Common  Law  for  definition 
and  rules  of  construction,  where  the  statute  itself  is  de- 
ficient. But  in  attempting  to  ascertain  whether  any  par- 
ticular trust  can  now  be  created,  we  cannot  resort  to  the 
Common  Law,  for  the  obvious  reason  that  this  light  has 
been  extinguished  by  the  Legislature." 

This  wise  and  decisive  action  of  the  highest  Court  of 
the  State  gave  the  best  assurance  that  the  work  of  the  Revis- 
ion was  a  real  reform  which  in  all  its  essential  features 
was  to  be  permanent  and  perpetual. 


59 

It  was  accepted  in  the  United  States  and  in  England  as 
an  expression  and  embodiment  of  the  vital  principles  of  the 
Common  Law,  practically  afaapted.to  the  administration  of 
a  free  government.  It  became  the  model  of  the  Statutory 
system  of  other  States  and  the  pattern  after  which  their 
laws  were,  in  a  large  measure,  modelled. 

In  the  entertaining  volume  lately  published  by  Walter 
Besant,  entitled  "  Fifty  Years  Ago,"  the  concluding  chapter 
on  "Law  and  Justice,"  prepared,  as  stated  in  the  preface, 
by  Mr.  W.  Morris  Colles,  of  the  Inner  Temple,  a  graphic 
summary  is  given  of  the  vast  changes  in  the  law  of  Eng- 
land during  the  Victorian  half  century.  The  era  of  legal 
reform  he  dates  from  the  accession  of  the  Queen,  during 
whose  reign  of  fifty  years  the  whole  fabric  of  judicial  pro- 
cedure has  been  reconstructed  and  many  radical  changes 
made  in  every  department  of  the  law.  In  1837,  when  she 
came  to  the  throne,  there  were  nearly  a  thousand  causes 
waiting  to  be  heard  in  the  Court  of  Chancery.  In  the  sec- 
ond year  of  her  reign  nearly  four  thousand  persons  were 
arrested  for  debt  in  London  alone,  and  of  these  nearly  four 
hundred  remained  permanently  in  prison.  The  barbarism 
of  the  criminal  law  had  been  only  partially  mitigated. 
Practically  nothing  had  been  done  to  carry  into  effect  the 
recommendations  of  the  Parliamentary  Law  Reform  Com- 
mission of  1826. 

The  Revised  Statutes  thus  preceded  by  seven  years  the 
beginning  of  the  reforms  by  which  the  administration  of 
the  law  of  Great  Britain  has  been  made  to  conform  to  the 
advance  of  civilization  in  other  paths  of  progress. 

The  work  was  thus  a  guiding  and  controlling  power  in 
all  the  later  movements  of  reform  in  the  law. 

In  the  State  of  New  York  it  was  the  decisive  step  which 
kept  her  in  the  forefront  of  the  jurisprudence  of  the 
nation,  her  place  by  right,  to  be  maintained  in  the  future,  as 
in  the  past,  by  an  honest  and  able  Bar  and  a  faithful  and 
fearless  Judiciary. 

The  many  additions  which  have  necessarily  been 
engrafted  upon  the  Revised  Statutes  in  the  course  of  the 


60 

three  score  years  of  amazing  progress  and  development, 
contained  in  the  seven  successive  editions  through  which 
they  have  passed  since  their  enactment  have  not  changed 
the  integrity  of  the  original  plan,  or  weakened  in  any 
essential  part,  the  main  structure. 

The  compensation  paid  by  the  State  to  the  Revisers  in 
addition  to  the  sum  of  one  thousand  dollars'voted  to  General 
Root  on  his  retirement  from  the  Commission  was  as  follows  : 
Mr.  Wheaton  received  one  thousand  dollars,  Mr.  Duer 
and  Mr.  Spencer,  each  four  thousand  five  hundred  dollars. 
Mr.  Butler,  the  only  one  of  the  persons  originally  appointed 
who  continued  to  the  end  of  the  work  received,  owing  to 
this  circumstance,  the  larger  sum  of  six  thousand  five 
hundred  dollars  ;  a  special  compensation  was  allowed  the 
two  last  named  Revisers  for  preparing  the  table  of  contents, 
marginal  notes  and  index,  and  superintending  the  publica- 
tion of  the  whole  work,  in  the  sum  of  $1,000  each,  and 
afterwards,  for  some  special  services,  a  further  sum  of  $100 
each  was  allowed. 

If  their  task  had  been  undertaken  for  its  emoluments 
these  would  have  been  wholly  inadequate,  but  the  real 
reward  came  in  the  sense  of  the  worthy  performance 
of  a  momentous  public  trust  and  in  the  assured  profes- 
sional eminence  accorded,  and  without  any  undue  discrimi- 
nation, to  all  of  them. 

From  the  work  of  these  important  years  the  Revisers 
advanced  in  maturer  life  to  new  honors  in  the  profes- 
sion and  to  high  posts  in  the  public  service,  State  and 
National. 

Their  respective  subsequent  careers  will  be  traced  in  the 
brief  biographical  sketches  supplementing  this  narrative  of 
the  work  of  the  revision,  as  a  kind  of  Postea  to  the  record 
now  made  up. 

It  is  enough  to  say  here  that  if  the  sole  work  of  their 
lives  had  been  that  which  we  have  now  recalled,  it  would 
suffice  to  command  our  admiration  and  gratitude. 

We  may  fitly  apply  to  these  associates  in  labors  into 


61 

which  the  later  toilers  in  the  same  fields,  and  we,  in  our 
own  professional  walks,  have  all  entered,  the  weighty 
aphorism  of  Lord  Bacon  : 

"  If  heaps  on  heaps  of  laws  have  swelled  into  so  many 
volumes,  or  labor  under  such  confusion,  that  it  becomes 
necessary  to  reduce  them  into  a  healthy  and  active  body, 
let  this  be  a  permanent  concern  ;  let  it  be  considered  an 
heroic  work ;  and  the  authors  of  such  a  work  should  be 
solemnly  and  deservedly  remembered  among  the  legisla- 
tors, among  the  founders  of  society." 


IN  tracing  the  careers  of  the  Revisers  subsequent  to  the 
completion  of  their  joint  labors,  I  may  be  permitted  to 
sketch  briefly  those  of  Chief  Justice  Duerand  Mr.  Spencer, 
and  to  reserve  that  of  their  associate  for  a  final  and  fuller 
narrative. 

The  reasons  for  greater  minuteness  of  detail  in  the  con- 
cluding sketch  will  doubtless  be  as  obvious  to  the  reader  as 
they  are  obligatory  on  my  sense  of  duty.  If  further  justifi- 
cation is  needed,  it  may  be  found  in  the  fact,  already  ad- 
verted to,  that  he  was  the  sole  member  of  the  Commission 
who  continued  in  it  from  its  original  creation  in  1824  to  the 
close  of  its  labors  in  1830,  and  who,  from  his  residence  dur- 
ing the  entire  period  at  the  State  capital,  was  most  actively 
identified  with  the  progress  and  consummation  of  the  work. 

In  the  case  of  his  associates  the  materials  for  biography 
at  my  command  are  scanty,  while  the  papers  and  correspond- 
ence of  my  father  touch  at  many  points  not  only  personal 
but  public  affairs  of  great  moment  at  the  time  to  which  they 
belong  and  of  some  historic  value,  and  there  is  much  in  my 
personal  recollections  to  aid  in  a  portrayal  of  his  character. 
Extended  biographical  details  are,  however,  excluded  by  the 
plan  of  these  commemorative  sketches  which  are  intended 
mainly  to  perpetuate  whatever  of  interest  attaches  to  their 
subjects  in  connection  with  their  labors  in  the  Revision  and 
their  services  in  later  life  to  the  State  and  Nation. 


62 

JOHN  DUEE,  who,  as  we  have  seen,  retired  from  the 
Commission  before  the  completion  of  its  labors,  continued 
to  discharge  the  duties  of  his  office  of  United  States  District 
Attorney  until  the  change  of  administration  in  1828,  when 
he  resumed  his  private  practice  in  the  city  of  New  York. 

The  versatility  of  his  mind  and  his  love  of  legal  investiga- 
tion led  him  to  plan  and  execute,  but  only  in  part,  an  ex- 
tended work  on  the  law  of  Marine  Insurance,  a  favorite  sub- 
ject of  his  study,  with  which  his  practice  of  commercial  law 
had  made  him  specially  familiar. 

The  student  of  our  earlier  reports  cannot  fail  to  be 
struck  with  the  number  and  importance  of  the  cases  argued 
and  decided  in  the  Supreme  Court  and  the  Court  of  Errors, 
during  the  time  of  those  reports,  involving  questions  of 
marine  insurance.  The  leaders  of  the  Bar  of  this  city 
were  masters  of  this  branch  of  the  law,  which  the 
growth  of  American  commerce  and  the  many  complications 
arising  out  of  the  wars  of  Europe  and  our  own  later 
hostilities  with  Great  Britain  brought  into  operation 
in  constantly  occurring  controversies.  Mr.  Duer's  work 
was  undertaken  with  the  intention  of  covering,  in  three 
volumes,  the  entire  subject  of  marine  insurance  ;  the  first 
two  volumes  were  published,  successively,  in  1845  and 
1846.  They  were  full  of  learning  and  ability,  and  were 
well  received  by  the  profession.  For  the  full  success  of 
the  work  it  was  necessary  that  it  should  be  completed, 
but  the  task  of  completion  was  never  accomplished.  An 
effort  was  made  in  1848,  by  his  warm  friend  and  associate 
in  the  Revision,  to  ensure  the  preparation  of  the  third 
volume  by  providing,  in  advance  of  its  publication, 
a  handsome  return  for  the  labor  of  completing  the  work 
and  the  generous  manner  in  which  this  plan  was  entered 
upon  by  the  leading  members  of  the  Metropolitan  Bar 
showed  the  strong  hold  of  Mr.  Duer  on  the  regard  and  af- 
fection of  his  fellow-laborers  in  the  profession.  In  further- 
ance of  this  plan  the  sum  of  two  thousand  dollars  was  pro- 
vided and  paid  to  Benjamin  F.  Butler  and  Jonathan 


63 

Prescott  Hall,  but  circumstances  hindered  the  success  of 
the  effort  and  the  trust  fund  reverted  to  the  subscribers. 

At  the  election  for  Judges  of  the  Superior  Court  of  the 
City  of  New  York,  held  April  10,  1849,  under  the  Act  of 
March  24,  1849,  to  increase  the  number  of  Justices  and  to 
extend  the  jurisdiction  of  the  Court,  Mr.  Duer  was  a  success- 
ful candidate  on  the  ticket  of  the  Whig  party,  and  after 
taking  his  seat  on  the  Bench  on  May  2,  1849,  all  idea  of 
completing  his  work  on  marine  insurance  seems  to  have  been 
abandoned. 

The  election  of  Judge  Duer  gave  general  satisfaction 
to  the  profession,  and  placed  him  in  a  secure  and  agreeable 
position.  The  enlarged  jurisdiction  given  to  the  Court, 
over  which  Samuel  Jones  and  Thomas  J.  Oakley  had  in 
succession  presided,  and  to  which  they  and  their  associates 
had  given  the  highest  repute  as  a  Court  of  commercial  law, 
drew  to  it,  under  its  enlarged  jurisdiction,  a  great  volume 
of  business  and  cases  of  the  first  importance.  To  Judge 
Duer,  the  new  duties  he  assumed  were  most  congenial,  and 
their  discharge  was  marked  by  the  personal  charm  of  man- 
ner and  the  unvarying  dignity  which  were  always  charac- 
teristic of  him. 

On  May  16,  1857,  he  was  elected  Chief  Justice  of  the 
Court,  to  fill  the  vacancy  caused  by  the  death  of  Chief 
Justice  Oakley. 

Between  the  great  jurist,  to  whose  place  on  the  Bench 
he  succeeded,  and  Judge  Duer,  there  were  many  dissimi- 
larities of  mental  traits  and  of  intellect  aal  tastes  and  pur- 
suits, but  a  close  friendship  had  existed  between  them,  and 
in  their  judicial  labors  they  united  in  upholding  the  highest 
standard  of  the  administration  of  the  law. 

By  natural  constitution  and  temperament,  Chief  Justice 
Oakley  was  more  a  judge  than  an  advocate,  while  Chief 
Justice  Duer  was  rather  an  advocate  than  a  judge,  and  they 
brought  to  bear  on  the  hearing  and  determination  of  the 
causes  submitted  for  their  determination  varied  qualities 
and  habits  of  mind,  and  very  great  learning  and  experience. 

Chief  Justice  Oakley  was  terse  and  concise  in  his  opin- 


64 

ions,  while  his  colleague  was  inclined  to  be  more  discursive 
and  rhetorical. 

Chief  Justice  Bosworth  once  told  me  that  during  the 
last  days  of  Chief  Justice  Oakley's  participation  in  the 
labors  of  the  Court,  in  some  instances  he  would  express 
himself  upon  the  cases  assigned  to  him,  orally,  and  his 
views  would  be  reduced  to  writing  by  Judge  Duer.  In 
reading  to  him  one  of  the  opinions  thus  prepared,  Judge 
Duer,  after  a  discussion  of  the  doubtful  questions 
involved,  came  to  the  expression,  "We  are  constrained 
to  admit—"  "  Strike  that  out,"  said  the  "  old  Chief,"  as 
we  were  wont  to  call  the  veteran  Chief  Justice.  "And 
what  shall  I  put  in  its  place  ?"  asked  his  associate.  "  Say 
'We  think,'"  was  the  quiet  rejoinder,  and  the  more 
judicial  phrase  passed  into  the  opinion  and  the  Reports. 

During  his  term  of  office  as  Chief  Justice,  there  were 
two  occasions,  one  out  of  Court  and  one  in  Court,  on  which 
he  showed  conspicuously  his  warmth  of  feeling  against 
what  he  deemed  unwarrantable  invasions  of  propriety. 

In  1851,  during  the  visit  of  Kossuth,  the  great  Hun- 
garian leader  and  orator,  he  attended  a  banquet  given  to 
this  distinguished  stranger  by  members  of  the  Bar  of  New 
York.  Kossuth,  as  the  guest  of  the  evening,  in  one  of  those 
impassioned  speeches  by  which  he  roused  the  sympathies 
of  the  American  people  for  the  sufferings  of  the  oppressed 
Hungarians,  pushed  to  an  extreme  his  appeal  for  interference 
by  our  government  in  their  behalf,  and  easily  evoked  the 
after-dinner  sympathy  which  is  always  available  and  abun- 
dant in  an  equal  ratio  to  its  irresponsibility.  When  the 
Judiciary  came  to  be  toasted,  Judge  Duer  was  called 
upon  to  respond,  and  while  dealing  with  the  Hungarian 
patriot  in  the  most  courteous  and  deferential  manner,  took 
occasion  to  denounce  his  efforts  to  seduce  American  citizens 
from  the  doctrine  of  non-interference  with  the  affairs  and 
controversies  of  foreign  nations,  inculcated  by  Washington, 
as  a  sowing  of  the  seeds  of  political  heresy  and  apostacy 
from  the  faith  of  the  fathers  of  the  Republic.  The  protest. 


66 

we  are  told,  "was  received  amid  a  storm  of  excitement." 
The  incident  caused  much  comment  at  the  time,  but  was 
chiefly  of  importance  as  an  exhibition  of  the  courage  and 
manliness  with  which  Judge  Duer  could  assert  what 
he  believed  to  be  the  right  view  of  any  great  question  with- 
out regard  to  the  opposing  feeling  of  the  hour  and  at  any 
risk  of  personal  unpopularity  or  adverse  criticism.  This 
action  of  Judge  Duer  at  the  Kossuth  dinner  in  New  York 
was  akin  to  a  similar  protest  by  Mr.  Clay,  when  the 
Hungarian  liberator  sought  an  interview  with  him  in  his 
sick  chamber  at  Washington,  against  any  interference  by 
the  United  States  in  aid  of  Hungary.* 

The  other  instance  was  when  a  young  man  of  the  name 
of  Finn,  a  lawyer  by  profession,  conceived  the  idea  that 
under  the  existing  statutes  in  relation  to  the  Superior 
Court  a  vacancy  existed  in  the  Bench  which  could  be 
iilled  at  a  pending  election. 

Accordingly  he  prepared  and  printed  a  few  ballots 
with  his  own  name  as  candidate,  distributed  them  among 
voters,  and  there  being  no  opposing  aspirant,  claimed 
to  have  been  elected  as  a  Judge  of  the  Court.  He  then 
made  his  appearance  in  the  Court  room,  and  asserted 
his  right  to  be  recognized  as  a  member  of  the  Court.  As 
his  claim  was  based  upon  the  Statute,  he  supposed  himself 
entitled  to  be  regarded  as  having  a  prima  facie  right  to 
•civil  treatment,  at  least,  on  the  part  of  the  Court  of  which 
he  declared  himself  an  Associate  Justice.  But  Chief  Justice 
Duer,  looking  upon  the  "  claimant"  as  attempting  to  steal 
a  judicial  office  from  the  people,  as  a  trespasser  ab  initio, 
made  short  work  of  his  clumsy  pretensions.  He  would 
not  tolerate  Finn,  or  temporize  with  him  or  give  him  a  stand- 
ing in  Court,  or  even  a  back  seat  on  the  Bench  and  the  way 
in  which  the  unfortunate  aspirant  for  judicial  honors  vainly 
tried  to  maintain  some  show  of  a  claim  to  act  as  a  Judge 
of  the  Court  under  the  unconcealed  contempt  and  visible, 
honest  indignation  of  the  Chief  Justice,  was  matter  of  con- 

*  Schurz'  Life  of  Henry  Clay,  Vol.  2,  p.  393. 


66 

siderable  entertainment  for  the  Bar  and  some  activity  on 
the  part  of  the  Court  officers,  and  resulted  in  the  utter  dis- 
comfiture of  the  judicial  pretender. 

Chief  Justice  Duer  died  in  the  city  of  New  York, 
August  8,  1858.  The  tributes  paid  to  his  memory  by  his 
brethren  of  the  Bench  and  the  Bar  are  contained  in  the 
sixth  Volume  of  the  Reports,  published  under  his  name, 
and  exhibit  in  terms  of  warm  and  sincere  eulogy  the  high 
estimation  in  which  he  was  held  by  his  associates  and  con- 
temporaries. 

Chief  Justice  Bosworth,  his  successor  in  office,  a  man 
singularly  clear  in  judgment  and  cautious  in  expression, 
gave  this  testimony  to  his  character  and  work  as  a  Judge  : 

"  No  man  was  more  industrious,  or  labored  longer  or 
more  faithfully  than  he.  He  was  so  constituted  that  he 
could  not  be  inactive.  He  read  much,  and  probably,  no 
Judge  in  the  State  read  more  promptly  or  with  more  care 
every  elementary  treatise  and  every  volume  of  reports, 
from  time  to  time  as  they  were  issued  from  the  press.  *  * 

No  judicial  opinions  excel  his  own  in  clearness,  in 
fullness  of  illustration,  in  beauty  of  style,  in  the  vigor  of 
their  logic,  or  in  the  richness  or  variety  of  learning  by 
which  they  are  supported.  However  strong  may  have 
been  the  impressions  he  had  formed  in  the  argument  of  a 
cause,  as  the  statement  and  argument  of  it  presented  it, 
if  it  so  happened  that  these  impressions  had  been  formed 
in  the  absence  from  the  mind  of  any  fact  which  should 
justly  affect  the  result,  no  one  more  readily  than  himself 
gave  it  its  just  effect  when  presented  to  his  mind  or  re- 
called to  his  attention,  and  yielded  so  much  of  previous 
convictions  as  the  truth  and  law  of  the  case  required. 
But  when  his  conclusions  were  deliberately  formed  upon  a 
consideration  of  all  the  facts  and  a  careful  examination  of 
the  law,  they  were,  as  all  would  expect,  the  conclusions 
of  a  man  of  strong  mind  and  great  learning  should  be,  so 
fixed  as  not  to  be  easily  shaken. 

He  had  another  mental  habit.  I  will  not  say  it  is  pecu- 
liar, but  it  is  not  common,  certainly  not  in  the  degree  it 
characterized  him.  He  rarely,  if  ever,  attempted  to  write 
an  opinion  until  his  examination  of  a  case,  and  of  the 
authorities  bearing  upon  it,  had  been  fully  made  and  com- 
pleted. The  mental  process  was  pursued  until  no  new 


67 

thoughts  were  likely  to  occur  from  further  reflection  before 
he  began  to  write.  Writing  was  not  to  him  an  aid  or  as- 
sistant in  the  comparison  of  authorities,  or  in  reaching  the 
legal  conclusions,  which,  together,  they  tended  to  establish. 
Hence,  most  of  his  opinions,  even  when  delivered  at  length, 
were  at  the  time  unwritten.  Hence,  they  were  delivered 
with  as  much  precision  of  language,  and  in  a  form  nearly, 
if  not  quite,  as  perfect  as  he  wrote.  And  when  he  came  to 
write,  it  was  rare  that  any  page  of  the  whole  was  disfig- 
ured with  an  alteration  or  an  interlineation.  I  think  it 
would  surprise  all  who  do  not  already  know  this  fact,  to 
inspect  the  manuscripts  of  his  longest  and  most  elaborate 
opinions.  It  is  a  rare  occurrence  that  a  word  is  obliterated, 
altered  or  interlined." 

His  colleague  in  the  Revision,  recalling  their  early  asso- 
ciation, added  these  words  of  personal  attachment  and 
glowing  eulogy  : 

"In  the  labors  and  studies  with  Mr.  Duer,  to  which  I 
have  referred,  have  been  spent  many  of  my  happiest  and 
most  instructive  days.  For  while  we  investigated,  with  a 
single  eye  to  the  good  of  our  fellow-citizens  and  the  glory 
of  our  profession,  the  whole  body  of  our  written  law,  and 
labored,  through  days  and  nights  of  toil,  to  give  fit  expres- 
sion to  those  parts  of  it  upon  which  we  were  employed, 
we  lightened  those  toils  by  frequent  excursions  into  other, 
and  some  times  widely  diiferent  walks.  Considerably  my 
senior  in  years,  and  far — very  far — my  superior  in  gifts 
and  knowledge,  he  was  in  the  law,  and  in  every  other  de- 
partment, emphatically  'my  guide,  philosopher  and  friend.' 
Not  to  speak  of  his  lucid  explanations  of  the  ground  and 
reason  of  the  law,  and  the  information  he  was  so  well  qual- 
ified to  give  on  legal  questions  continually  coming  into 
discussion  in  our  daily  tasks,  he  delighted  to  converse,  not 
only  on  the  more  general  topics  of  philosophy,  politics  and 
letters,  but  on  the  momentous  questions  which  grow  out  of 
man's  immortal  nature,  and  the  relations  in  which  he 
stands  to  his  Creator,  Governor,  and  Judge.  How  great 
were  his  conversational  powers  !  With  what  facility  and 
richness  he  poured  forth  from  the  stores  of  his  well-fur- 
nished mind,  and  by  the  aid  of  his  powerful  memory,  wise 
and  worthy  thoughts  and  suggestions,  on  subjects  which 
awakened  those  powers,  must  be  well  known  to  many  of 
those  now  present ;  indeed,  to  all  who  have  had  the  oppor- 
tunity of  familiar  intercourse  with  him.  And  now  what 


68 

shall  I  say  more  ?  When  I  think  of  the  loss  which  you— 
brethren  of  the  Bench  and  of  the  Bar — have  all  sus- 
tained— of  the  special  loss  which  has  fallen  upon  me — and 
of  the  far  heavier  loss  which  has  fallen  with  crushing 
weight  upon  his  afflicted  family — I  could  almost  cry  out 
with  one  of  old — 

"  '  Quis  desiderio  sit  pudor  aut  modus, 
Tam  cari  capitis.' " 

To  these  words  of  merited  praise  and  as  a  fitting  close 
to  this  brief  memoir,  must  be  added  a  few  sentences  from 
the  speech  on  the  same  occasion  by  James  T.  Brady,  the 
most  eloquent  and  one  of  the  ablest  of  the  advocates  of  our 
Bar: 

"  He  was  a  man  of  genius,  and  the  spirit  of  the  advo- 
cate which  had  been  lighted  up  by  that  genius  in  his  early 
professional  career  never  quitted  him,  even  on  the  Bench, 
and  it  would  be  flattery  to  say  that  this  was  not  one  of  his 
characteristics.  But  he  was  the  high  advocate  of  right,  of 
law,  of  justice.  It  is  true,  that  when  a  case  was  brought 
before  the  Bench  to  be  discussed,  and  that  there  was  ad- 
vanced even  one  thought  that  seemed  to  be  the  precursor  of 
error  coming  to  cloud  or  confuse  the  judicial  mind,  he 
never  hesitated  to  expose  or  expel  it.  It  is  true  that  he 
stood  as  with  a  flaming  sword,  and  guarded  every  entrance 
by  which  such  error  might  approach.  It  is  true  that  his 
mind  caught  from  the  discussion,  which  elicited  sparks  of 
flashing  intelligence  from  the  members  of  the  Bar,  many  a 
ray  of  parti-colored  light.  In  that  respect  the  gem  set 
within  his  soul  suggested  a  close  comparison  to  another 
jewel  highly  prized  among  men.  It  couM  give  back  all  the 
tints  cast  upon  it ;  but  it  remained  still  the  diamond — 
brilliant  in  its  pure  integrity  with  its  singleness  of  color 
and  its  capacity  to  diffuse  more  light  than  its  face  re- 
ceived." 

Chief  Justice  Duer  married  in  1804,  Anne  Bedford 
Bunner,  daughter  of  George  Bunner ;  she  survived  her 
husband  and  died  December  26,  1864. 


JOHN  C.  SPENCER,  on  the  completion  of  his  share  in  the 
work  of  the  Revision,  was  appointed  in  1829,  by  Martin 
Van  Buren,  then  Governor,  the  prosecuting  officer,  on  be- 
half of  the  State,  of  the  supposed  abductors  of  William 
Morgan,  a  bricklayer  living  at  Batavia,  Genesee  county,  N. 
Y.,  who  had  been  taken  by  a  body  of  men  in  September, 
1826,  from  the  jail  at  Canandaigua  and  carried  thence  to 
the  Niagara  river,  in  whose  waters  he  was  believed  to  have 
been  drowned  by  his  captors,  all  in  revenge  for  his  alleged 
disclosures  of  secrets  of  the  Masonic  order. 

Morgan's  case  and  the  prosecution  of  the  persons 
charged  with  complicity  in  his  taking  off  were  controlling 
elements  in  the  political  struggles  of  the  time  in  which  they 
happened.  The  rise,  progress  and  extinction  of  the  Anti- 
Masonic  party  belong  to  the  curiosities  of  political  history. 
It  seems  strange  to  us,  in  the  retrospect,  that  hostility  to  a 
private  society  should  have  become  the  basis  of  a  State 
party  and  ultimately  of  a  National  party  attaining  such 
proportions  as  to  induce  this  deliberate  statement  by  John 
Quincy  Adams  in  one  of  the  innumerable  entries  in  his 
diary:  "The  dissolution  of  the  Masonic  institution  in  the 
United  States  I  believe  to  be  more  important  to  us  and  our 
posterity  than  the  question  whether  Mr.  Clay  or  General 
Jackson  shall  be  President." 

William  Wirt,  the  brilliant  and  versatile  Attorney-Gen- 
eral, first  appointed  by  Mr.  Monroe  in  1819  and  continued 
in  office  by  Mr.  Adams,  was  nominated  for  the  Presidency 
in  1828  as  an  Anti-Masonic  candidate,  and  as  the  result  of 
what  he  himself  called  "a  political  scrape,"  and  what 
seems  in  the  retrospect  almost  a  senseless  escapade,  earned 
a  single  State,  Vermont,  General  Jackson  being  elected 
President  by  219  electoral  votes  over  Mr.  Clay,  who  re- 
ceived only  49  votes.  , 

Mr.  Spencer's  efforts  as  prosecuting  officer  against  the 
Masonic  ringleaders  were  honest  and  fearless  but  with  no 
very  marked  results.  Their  conspiracy  had  been  only  too 
well  contrived  and  executed.  He  espoused  the  Anti- 
Masonic  cause  as  a  politician  as  well  as  an  attorney,  per- 


70 

haps  to  show  that  he  was  as  sincere  in  his  desire  to  destroy 
the  influence  of  the  Masonic  order  as  he  was  to  convict  the 
perpetrators  of  the  crime  which  had  made  it  obnoxious. 
He  supported  Wirfc  for  the  Presidency,  was  on  the  Anti- 
Masonic  electoral  ticket  in  New  York  and  suffered  defeat 
with  his  party. 

The  Whig  party  rose  on  the  ruins  of  the  Anti-Masonic 
movement  and  rapidly  consolidated  the  varying  elements 
of  opposition  to  the  administration  of  General  Jackson, 
whose  strong  and  aggressive  policy  coerced  the  minority 
into  cohesion  and  organized  opposition  under  their  ablest 
leaders.  Mr.  Spencer  gave  in  his  adhesion,  but  remained 
in  private  life  until  1838,  when  William  H.  Seward  was 
elected  Governor,  and  Mr.  Spencer,  having  in  1837  removed 
his  residence  to  Albany,  was  elected,  on  the  same  ticket,  as 
Secretary  of  State.  Being  ex-officio  Superintendent  of 
Common  Schools,  he  took  up  anew  the  subject  of  education 
as  connected  with  the  State  and  by  a  masterly  report  ex- 
hibited his  thorough  acquaintance  with  the  whole  subject 
of  public  instruction. 

In  the  succession  of  Mr.  Tyler  to  the  presidency  after 
General  Harrison's  death,  in  April,  1841,  Mr.  Spencer  became 
a  member  of  his  Cabinet  as  Secretary  of  War,  and  later  was 
appointed  Secretary  of  the  Treasury.  His  adhesion  to 
President  Tyler's  political  fortunes  cost  him  his  position  as 
a  leader  of  the  Whig  party,  and  when  his  name  was  sent  to 
the  Senate  by  the  President,  as  the  nominee  for  the  vacant 
place  on  the  bench  of  the  Supreme  Court,  caused  by  the 
death  of  Justice  Smith  Thompson,  his  rejection  was  the 
logical  consequence  of  the  hostility  engendered  by  his  close 
relations  with  the  President. 

Mr.  Spencer's  political  career  closed  with  his  retirement 
from  the  Treasury  and  his  declared  opposition  to  the  an- 
nexation of  Texas.  The  remaining  years  of  his  life  were 
spent  in  the  practice  of  the  law  at  Albany,  where  he  died 
May  20,  1854.  He  had  married,  May  20,  1809,  Elizabeth 
Scott  Smith,  who  survived  him  and  who  died  October  10, 
1869. 


71 

Mr.  Spencer's  death  closed  a  serviceable  and  patriotic 
career,  meriting  even  higher  recognition  than  has  been 
accorded  it.  But  he  was  less  fortunate  in  forming 
political  alliances  than  in  the  exercise  of  his  native 
gifts.  Probably  no  member  of  the  Bar  of  this  State  ever 
brought  to  the  work  of  the  profession  greater  faculties  of 
insight  and  endurance.  His  mind  has  been  fitly  charact- 
erized as  "  gigantic  in  its  comprehension  and  microscopic 
in  its  accuracy."  Of  this  class  of  intellects  a  conspicuous 
example  in  our  own  later  time  was  furnished  by  Charles 
O' Conor,  a  man  who  in  many  of  his  intellectual  traits  and 
in  some  of  his  idiosyncrasies  of  political  opinion  re- 
sembJed  Mr.  Spencer,  of  whom  he  was  a  great  admirer.  He 
specially  praised  his  method  of  argument  and  his  rare 
power  of  coming  at  once  and  with  absolute  precision  to 
"  the  real  point  of  the  case." 

Mr.  Spencer  was  a  man  of  the  deepest  convictions,  stern, 
sometimes  repulsive  in  his  assertion  of  them,  tenacious  and 
fearless  alike  in  the  friendships,  and  in  the  antagonisms  of 
life,  strong,  resolute  and  iron-willed,  and  yet  kindly  and 
sympathetic  in  his  nature. 

The  general  judgment  of  the  profession  was  summed  up 
in  the  brief  sentence  of  a  journalist  who  characterized  his 
"  singular  capacity  to  labor  without  fatigue  as  only  equalled 
by  the  extent  and  variety  of  the  professional  services  he 
performed." 


BENJAMIN  F.  BUTLER,  who  survived  both  his  associates 
in  the  work  of  the  Revision,  and  who  alone  had  been  iden- 
tified with  it  from  its  earliest  inception  to  its  close, 
was  justly  accorded  a  large  share  of  the  professional 
repute  which  accrued  to  its  authors. 

His  residence  at  Albany  and  his  connection  with  the 
leaders  of  the  political  party  then  firmly  established  in 
power  both  in  the  State  of  New  York  and  in  the  Federal 


72 

government,  as  well  as  his  assured  professional  rank,  com- 
bined to  place  him  at  the  front  of  the  Bar. 

In  the  Court  of  Errors  he  was  constantly  employed 
in  the  most  important  causes.  At  the  session  held 
in  New  York  in  1833,  of  the  whole  number  of  eighteen 
cases  reported  in  the  llth  volume  of  Wendell's  Reports, 
he  was  counsel  in  nine,  including  the  well  known  case 
of  Grover  vs.  Wakeman  establishing  the  right  of  an 
insolvent  debtor  to  make  preferences,  in  good  faith, 
in  an  assignment  for  creditors,  and  the  leading  case  of 
Allen  vs.  Addington  establishing  the  liability  of  a  third 
party  making  representations  by  means  of  which  a  pur- 
chaser obtains  credit  from  a  vendor. 

I  find  a  home-letter  written  during  his  attendance  at 
this  term  of  the  Court  of  Errors,  in  which  he  says  that  he 
is  glad  to  have  an  associate  counsel  in  one  of  his  many 
cases,  as  he  fears  the  Court  will  weary  of  hearing  con- 
tinuous arguments  by  himself. 

His  relations  at  this  time  to  the  Bench  and  the  Bar  of 
the  State  were  particularly  agreeable.  The  means  of  access 
to  the  capital  from  remote  and  interior  points  and,  during 
the  winter  season,  even  from  New  York,  were  so  inadequate 
in  comparison  with  those  now  existing,  that  a  journey  to 
Albany  was  a  serious  affair,  and  at  the  sessions  of  the 
courts  held  there  the  employment  of  local  counsel  was  far 
more  frequent  than  now.  Of  the  practice  thus  created  he 
enjoyed  a  very  large  share.  He  occupied,  while  he  re- 
mained at  Albany,  a  position  in  this  regard  similar 
to  that  afterwards  enjoyed  by  Nicholas  Hill,  one  of  the 
brightest  ornaments  of  the  Bar  of  this  State  and  its  most 
conspicuous  leader  in  the  court  of  last  resort. 

In  February,  1833,  on  the  retirement  from  the  United 
States  Senate  of  William  L.  Marcy  to  assume  the  office  of 
Governor  of  the  State  of  New  York,  the  vacant  place  in 
the  Senate  was  urgently  pressed  on  Mr.  Butler,  and  Mr. 
Van  Buren,  then  Vice -President  and  the  presumptive  can- 
didate for  the  Presidency  in  1836,  desired  him  to  accept  it. 


73 

But  he  was  firm  is  his  resolution  to  take  no  office  which 
would  withdraw  him  from  his  professional  pursuits. 

Governor  Marcy  afterwards  desired  to  appoint  him  to 
the  Bench  of  the  Supreme  Court,  as  the  successor  of  Judge 
Sutherland.  Chief  Justice  Savage,  who  presided  in  the 
Court  during  the  whole  period  of  the  Revision,  and  for  six 
years  after  its  completion,  wrote  him  a  letter  communicat- 
ing the  oifer,  and  urging  its  acceptance  in  these  words  of 
warm  personal  friendship — 

u  The  office  of  Judge,  permit  me  to  say,  is  one  to  which 
you  are  well  adapted  ;  and  in  which  you  can  render  as 
great  service  to  your  native  State  as  any  other.  It  is  one 
in  which  you  will  probably  enjoy  as  much  human  happi- 
ness as  any  other,  and  in  which  you  will  have  as  much 
leisure  for  literary  pursuits,  perhaps,  as  in  the  duties  of  an 
arduous  profession ;  and  supposing  you  to  have,  as  all 
members  of  the  profession  ought  to  have,  a  laudable  ambi- 
tion for  an  elevated  standing  as  a  jurist  and  scholar,  in 
which  of  the  walks  of  learning  can  you  have  a  better  field 
for  the  exercise  of  your  powers  ?  This  is  a  subject  on  which 
I  need  not  attempt  to  persuade  you  ;  you  must  act  as  your 
judgment  directs.  I  will  only  remark  farther,  that  should 
you  accept  the  office,  there  is  every  probability  that  in  a 
few  years  at  farthest  you  will  preside  in  the  Court.  And  I 
need  not  inform  you  that,  in  my  estimation,  that  station  is 
as  honorable  as  "any  in  our  State,  and  is  surpassed  by  but 
few  in  the  United  States." 

But  the  Chief  Justice,  with  the  candor  and  fairness 
which  characterized  him,  did  not  fail  to  point  out  to  his 
friend  that  unless  he  already  had  money  in  his  purse 
sufficient  for  his  future  wants,  the  judicial  office  was  to  be 
shunned.  The  want  of  a  proper  compensation  for  his  ser- 
vices had  driven  Judge  Sutherland  from  the  Bench  which 
he  adorned,  and  the  Chief  Justice,  referring  to  this 
circumstance,  says,  "the  cause  of  that  resignation  is  rather 
calculated  to  deter  those  who  are  most  competent  to  fill 
the  vacancy  from  accepting  the  station.  Indeed,  if  a  man 


74 

wishes  to  be  rich,  he  should  become  so  before  he  ascends 
the  Bench." 

The  meagre  pittance  then  allowed  by  the  State  to  our 
Supreme  Court  Judges  was  of  itself  a  bar  to  the  judicial 
office  to  a  man  with  a  large  family  and  an  ample  professional 
practice,  and  the  place  on  the  Bench  was  declined.  Fortu- 
nately for  the  State,  an  incumbent  was  found  so  situated 
as  to  be  able  to  accept  the  vacant  seat,  and  so  endowed 
with  rare  judicial  qualities  as  to  make  his  long  and  con- 
spicuous career  in  the  Supreme  Court  of  the  State,  and 
afterwards  is  the  Supreme  Court  of  the  United  States,  one 
of  the  most  noted  examples  of  eminence  and  fidelity  in 
the  annals  of  the  American  judiciary. 

In  February,  1883,  Peter  A.  Jay  and  Benjamin  F.  But- 
ler, of  New  York,  were  appointed,  with  Theodore  Freling- 
huysen,  of  New  Jersey,  a  commission  to  settle  the  long- 
disputed  controversy  of  half  a  century's  duration  as  to  the 
boundary  line  between  the  two  States,  a  service  resulting 
in  the  convention  which  has  ever  since  controlled  the  juris- 
diction and  rights  of  these  States  as  respects  their  bound- 
ary line. 

Meanwhile,  repeated  overtures  came  to  Mr.  Butler  from 
Washington,  through  Mr.  Van  Buren,  looking  to  his  ac- 
ceptance of  office  in  the  Administration  of  General  Jackson. 
These  were  declined  as  often  as  they  were  renewed  until, 
in  the  great  political  crisis  caused  by  the  struggle  between 
the  national  administration  and  the  Bank  of  the  United 
States,  the  summons  to  Washington  seemed  so  imperative 
that  it  could  not  be  refused  without  apparently  placing 
personal  considerations  above  public  duty. 

Up  to  this  time  the  whole  tenor  of  his  life  had  been  un- 
disturbed by  any  influences  foreign  to  his  position  as  a 
leader  of  the  Bar  of  his  native  State  and  to  an  active  inter- 
est in  the  stirring  public  questions  of  the  time.  His  friend- 
ship for  Mr.  Van  Buren  had  kept  him  in  close  alliance  with 
the  political  party  of  which  his  former  partner  was  the 
acknowledged  head,  and  in  co-operation  with  Governor 
Marcy,  Edwin  Croswell,  Azariah  C.  Flagg,  Silas  Wright, 


75 

John  A.  Dixand  the  other  leading  public  men  of  the  Capitol, 
who,  from  their  union  in  political  action,  had  acquired  the 
sobriquet  of  the  "Albany  Regency." 

This  union,  though  generally  supposed  to  be  for 
the  advancement  of  party  objects,  was,  in  fact,  largely 
due  to  a  community  of  views  on  what  the  men  who  formed 
it  regarded  the  true  principles  of  free  democratic  govern- 
ment. Their  unselfish  and  undeviating  personal  regard  for 
Mr.  Yan  Buren  was  something  remarkable  and  rare  in  polit- 
ical fellowships.  His  high  gift  and  faculty  of  attaching  to 
himself,  by  strong  ties  of  friendship,  able  and  upright  men, 
has  been  well  cited  by  his  latest  biographer  as  a  proof  of 
the  intrinsic  worth  of  his  character. 

To  those  persons  who  imagine  that  the  chief  aim 
of  men  who  by  nature  and  association  incline  to  active  par- 
ticipation in  public  affairs,  is  the  possession  of  place  and 
power,  the  letters  which  passed  between  Mr.  Van  Buren  and 
his  former  pupil  and  devoted  friend  touching  the  accept- 
ance by  the  latter  of  high  office  in  the  National  Govern- 
ment, would  go  far  toward  correcting  such  an  impression. 
It  needed  every  argument  and  appeal  which  the  older  man 
was  able  to  present  to  the  younger  to  overcome  his  reluct- 
ance to  leave  his  private  professional  life  for  a  more  public 
career. 

Devoted  to  the  pursuits  of  a  student,  he  delighted  in 
nothing  so  much  as  in  scholarly  habits  and  in  imparting  to 
others  the  knowledge  he  had  acquired,  reminding  me  in 
these  traits  of  the  ardent  love  of  research  so  conspicuous  in 
Sir  William  Jones,  whom  he  greatly  resembled  in  character 
and  whose  expressed  desire  was  to  retire,  at  the  close  of  his 
professional  life,  to  the  retreat  of  his  beloved  University, 
there  to  pursue  without  interruption  the  studies  which 
were  his  chief  enjoyment. 

He  had  already  given  thought  to  the  plan  of  a  Law 
School  and  always  preferred  the  task  of  studying  and 
teaching  the  law,  as  a  science,  to  any  other  pursuit. 
With  these  views  he  had  steadily  put  aside  all  offers  of 
public  office,  greatly  strengthened  in  this  course  of  action 


76 

by  the  strong  repugnance  of  his  wife  to  the  society  and  life 
of  the  Federal  Capital. 

He  had  married  in  1818,  just  after  his  admssion  to  the 
Bar,  Harriet  Allen,  the  daughter  of  Howard  and  Lydia 
Allen,  who  were  among  the  Nantucket  Colony  which 
founded  the  city  of  Hudson,  N.  Y.,  and  whose  son, 
William  Howard  Allen,  after  a  brilliant  career  in  the  United 
States  Navy,  distinguishing  himself  in  the  engagement  be- 
tween the  Argus  and  the  Pelican  in  the  war  of  1812,  had 
been  killed  in  the  service  while  attacking  a  piratical  vessel 
in  the  West  India  seas. 

His  name  has  been  immortalized  by  the  Muse  of  Hal- 
leek. 

I  cannot  forbear  citing  here  one  of  Mr.  Van  Buren's  let- 
ters as  an  illustration  of  his  friendship  and  consideration, 
and  of  the  tone  and  temper  in  which  he  treated  the  per- 
sonal, local  and  moral  aspects  of  the  subject  he  discussed. 
Written  at  a  moment  when  he  was  himself  the  sub- 
ject of  coarse  ridicule  and  vituperation,  based  on  inces- 
sant charges  of  the  selfish  and  sinister  motives  which  the 
political  opponents  who  envied  his  success  and  plotted  for 
his  defeat  never  wearied  of  imputing  to  him,  it  shows  the 
exercise  of  qualities  as  far  removed  from  the  duplicity  of 
political  intrigue  as  his  pure  personal  character  and  fidelity 
to  duty  were  alien  to  the  low  instincts  of  his  traducers. 

WASHINGTON,  November,  8,  1833. 
MY  DEAR  SIR  : 

I  bespeak  for  the  proposition  I  am  about  to  make  yours 
and  Mrs.  Butler's  most  deliberate  consideration,  before  you 
conclude  to  reject  it.  I  say  Mrs.  B's,  because  in  whatever 
relates  so  essentially  to  your  future  welfare,  she  ought  of 
right  to  be  consulted  ;  and  she  has  on  a  former  occasion 
shown  herself  so  much  wiser  than  we  were,  that  it  would  be 
a  positive  injustice  to  refuse  to  take  her  into  counsel  now. 

The  appointment  of  Mr.  Daniel  to  the  office  of  Attorney- 
General  was  published  by  mistake,  before  his  positive 
acceptance  had  been  ascertained.  He  has  been  with  us,  and 
after  a  full  and  frank  conversation  with  the  President,  has 
decided  not  to  accept  it.  With  the  reasons  for  that  decis- 


77 

ion,  which  he  came  to  with  the  greatest  pain  and  reluctance, 
it  is  unnecessary,  now,  to  trouble  you.  Mr.  Daniel  is  a  gen- 
tleman of  the  very  highest  character,  and  very  respectable 
talents,  but  does  not  entertain  that  confidence  in  them  which 
his  friends  think  would  be  justifiable  ;  and  there  were  urgent 
family  and  personal  obstacles.  The  President  thought,  as 
I  informed  you,  that  he  ought  to  go  South  for  this  appoint- 
ment, and  having  in  good  faith  done  so,  he  will  now  regard 
the  accidental  circumstance  of  the  publication  of  Mr. 
Daniel's  appointment  a  fortunate  incident,  if  it  shall,  as  he 
hopes,  enable  him  to  bring  into  his  cabinet  one  who  every 
member  of  it  would  be  delighted  to  see  here,  and  that  is 
yourself.  Before  this  had  occurred,  I  would  not  myself 
nave  proposed  it  to  you,  had  the  matter  been  at  my  dis- 
posal. Now,  I  think  it  free  from  difficulty  or  objection. 
The  President  will  with  the  greatest  pleasure  confer  the 
appointment  upon  you,  and  I  am  as  solicitous  as  I  could 
possibly  be  upon  any  subject  that  you  shall  accept  it.  Inde- 
pendent of  the  public  considerations  which  are  amply  suffi- 
cient to  justify  this  solicitude,  I  feel  that  if  not  indispens- 
able, (though  extremely  important,)  for  the  present,^it  is,  in 
reference  to  a  possible  future,  most  fitting  as  it  respects  my- 
self that  you  should  be  here  in  some  such  a  situation.  Not 
one  word  is  necessary,  I  know,  to  satisfy  you  that  I  would 
not  press  my  personal  solicitude  upon  you,  as  I  for  the  first 
time  freely  do,  if  I  were  not  entirely  satisfied,  that  what  I 
ask  of  you  will  promote  your  own  interests,  and  those  of 
your  family  ;  or  at  the  least  that  it  will  certainly  not  prej- 
udice them.  I  think  so  in  respect  to  all  the  points,  which, 
in  such  a  case  arise  for  consideration,  and  I  will  briefly 
assign  my  reasons.  Although  you  will  recollect,  I  readily 
concurred  in  your  objection  to  taking  the  place  of  Senator, 
I  have  ever  since  been  impressed  with  the  belief  that  it  was 
a  sacrifice  which  you  might  with  propriety  have  made.  I 
gave  in  to  your  views,  partly  because  I  feared  that  from 
your  gentlemanly  and  pacific  disposition  (although  not 
wanting  in  spirit  when  its  exhibition  is  necessary),  the 
rough  and  tumble  of  the  Senate  might  not  please  you  ;  but 
principally,  because  I  was  apprehensive  that  it  might  affect 
the  interests  of  your  family  in  a  pecuniary  point  of  view. 
That  now  presented  steers  entirely  clear  of  these  objections, 
and  has  advantages  which  ought  not  to  be  lightly  over- 
looked. Although  you  are  not  the  slave  of  mad  ambition, 
you  are,  as  you  ought  to  be,  tenacious  of  your  professional 
standing.  That  cannot  be  increased  at  home,  and  can  only 


78 

be  made  National,  by  becoming  identified  with  National 
concerns.  Depend  upon  it,  my  dear  sir,  that  this  is  so. 
The  fact  presses  itself  upon  my  observation  almost  daily, 
when  I  find  how  little  is  known,  or  cared,  abroad,  about 
you  who  are  at  the  very  top  of  the  ladder  at  home.  Mr. 
Wirt,  Mr.  Webster,  Mr.  Pinkney  and  Mr.  Taney,  although 
possessing  the  same  talents,  would  not  have  gone  beyond  a 
passing  observation  out  of  their  own  States,  if  they  had  not 
entered  upon  the  National  theatre.  You  recollect  to  have 
merely  heard  of  Mr.  Taney,  whilst  at  the  Washington  Bar, 
now,  although  the  same  man,  he  is  known  and  respected  as 
a  man  of  talents  throughout  the  Union.  The  reason  why 
it  is  so,  it  is  unnecessary  to  go  into  ;  the  fact  is  sufficient 
and  undeniable,  that  the  great  body  of  the  people, 
will  only  look  for  the  great  men  of  the  Nation  amongst 
those  who  are  actually  engaged  in  its  service.  Although 
you  are  too  wise  to  be  craving  for  a  distinction  of 
this  sort,  you  are  at  the  same  time  too  wise  to  be  indiffer- 
ent to  it.  Providence  has  cut  you  out  for  its  acquisition  in 
this  very  place,  and  you  have  no  right  to  turn  your  back 
upon  the  occasion,  which  presents  it  to  you  in  so  honorable 
and  entirely  unexceptionable  a  manner.  In  a  pecuniary 
point  of  view,  it  cannot,  I  deliberately  think,  be  other- 
wise than  beneficial.  The  salary  is  $4,500,  besides  office, 
messenger,  clerks,  &c.,  and  occasional  compensation  from 
the  Government  for  services  which  do  not  necessarily  ap- 
pertain to  the  office.  You  can  enter  upon  the  business  of 
the  Supreme  Court  of  the  U.  S.  with  advantages,  which, 
if  not  immediately  equal  to  those  of  Webster  (who  makes 
his  thousands  not  to  say  tens  of  thousands  by  it),  very 
soon  would  be  ;  and  the  President  says  it  will  be  compe- 
tent for  you,  without  prejudice  to  the  public  interest,  to 
attend  the  higher  Courts  at  New  York  and  Albany.  All 
previous  Atty.  Genls.,  who  desired  it,  have  done  so  in  re- 
spect to  their  own  States.  To  the  former  place  you  will, 
next  season,  be  able  to  go  in  15  hours,  and  to  the  latter  in 
a  day  and  a  night.  What,  then,  is  there  to  prevent  you 
from  increasing  your  provision  for  your  children,  which  I 
admit  to  be  obligatory  on  you  ?  Nothing  that  I  can  see. 
You  can  live  as  cheap  here  as  in  N.  York.  Your  manner 
of  living  can  be  regulated  by  your  own  taste,  and  as  every- 
body knows  that  you  are  not  a  man  of  pleasure,  or  parade, 
nobody  will  gossip  about  you.  By  taking  this  course,  you 
will  accomplish  what  you  are  all  so  anxious  about — viz., 
that  you  can  be  more  with  your  family  than  heretofore. 


79 

The  only  exception  need  be,  your  visits  to  N.  York  during 
the  sittings  of  the  Courts,  when  you  can  take  your  family 
with  you,  without  stopping  between  this  and  N.  Y.,  espe- 
cially when  the  railroad,  the  making  of  which  is  now  under 
full  operation,  is  completed.  I  recollect  when  the  subject 
was  before  contingently  discussed,  and  when  you  con- 
cluded that  you  could  not  take  it,  that  Mrs.  Butler  did  not 
like  the  idea  of  bringing  her  daughters  up  here.  Upon 
reflection,  I  think  she  will  find  that  objection  not  so  well 
founded  as  she  then  supposed.  Mr.  McLean,  Mr.  Taney, 
Mr.  Woodbury  and  Gov.  Cass  have  each  a  houseful  of 
little  girls  of  the  very  finest  character,  and  I  am  quite  sure 
that  the  society  for  Mrs.  B.  and  the  children  would  be  at 
least  as  good  here  as  in  N".  York  ;  and  if  she  cannot  pos- 
sibly do  without  hearing  something  more  upon  the  subject 
of  temperance,  she  can  count  upon  Gov.  Cass  as  a  never- 
failing  source.  He  has  as  much  of  the  true  spirit  in  him 
as  Norton  and  Delavan  combined,  and  Mr.  Van  Vechten 
and  Courtland  Van  Rensselaer  to  boot.  But  to  return 
from  this  digression,  you  must  come.  I  tell  you  frankly 
that  I  have  made  up  my  mind  so  decidedly  that  it  is  best 
for  the  public,  for  you  and  yours,  for  myself,  and  that  you 
will  prove  to  be  useful  and  acceptable  to  the  President, 
that  I  cannot  think  of  a  declension  with  composure.  As 
you  were  willing,  in  the  exuberance  of  friendship,  to  come 
with  me  in  1829  as  Under  Secretary,  and  give  up  the  finest 
professional  prospects  man  ever  had,  I  shall  think  you 
must  have  undergone  some  strange  metamorphosis,  if  you 
now  refuse  to  come  into  the  Cabinet  with  those  profes- 
sional prospects  enhanced  instead  of  abandoned.  This  must 
in  the  first  instance  be  strictly  confined  to  Mr.  and  Mrs. 
Flagg,  Croswell,  Dix  and  John,  with  whom  I  wish  you  to 
advise.  If,  contrary  to  my  earnest  hope,  you  determine  to 
decline,  not  a  word  must  be  said  upon  the  subject.  If  you 
act  the  wiser  part,  you  may,  as  is  usual  in  such  cases,  con- 
sult with  your  friends  generally  after  your  mind  is  made 
up.  I  have  not  included  the  Governor,  because  he  is,  I 
suppose,  busy  with  his  message,  but  you  may  speak  to 
him,  of  course,  if  you  wish  it.  Tell  Mrs.  B.  I  shall 
never  forgive  her  if  she  throws  any  obstacles  in  the  way. 
I  intend  to  be  in  N".  York  on  Wednesday  of  next  week,  and 
hope  you  will  meet  me  there. 

It  will,  in  case  of  acceptance,  be  necessary  that  you. 
should  come  down  immediately,  for  a  day  or  two  only,  to 
sign  some  patents  which  are  waiting  the  Atty.  Gen'l's 


80 

signature,  and  there  is  no  authority  to  appoint  an  acting 
Atty.  After  that,  you  may  return  and  make  your  arrange- 
ments for  the  winter.  If  you  conclude,  as  you  ought  to  do, 
I  wish  you  would  write  at  once  to  the  President,  as  he  is 
very  anxious  to  have  the  matter  closed. 

Remember  me  very  kindly  to  Mrs.  B.  and  the  children, 
and  believe  me, 

Very  truly  yours, 

M.  VAN  BUEEN. 
To 

B.  F.  BUTLEE,  Esq. 

P.  S. — The  President  has  read  this  letter,  and  approves 
it.  He  does  not  write  you  himself  because  I  have  told  him 
that  it  is  not  necessary  at  this  time. 

M.  V.  B." 


The  appeal  thus  made  could  not  be  withstood  and  a 
letter  was  written  to  President  Jackson,  accepting  the  office 
of  Attorney- General,  on  the  duties  of  which  the  new  incum- 
bent immediately  entered. 

The  hold  which  he  had  upon  the  community  in  which  his 
lot  had  been  cast,  is  shown  by  the  letter  written  to  him  on 
his  leaving  Albany,  signed  by  leading  citizens  of  all 
pursuits  and  parties.  It  is  dated  November  26,  1833,  and 
bears  eighty-nine  signatures,  the  names  including  many  of 
the  most  eminent  citizens  of  the  State,  familiar  in  its  history 
as  statesmen,  judges,  lawyers,  divines,  physicians  and  men 
of  note  in  various  walks,  and  testifies  to  their  estimate  of 
his  worth,  their  personal  friendship  and  their  regret  at 
losing  him  from  their  social  circles  and  from  active 
co-operation  in  the  interests  of  the  city. 

In  Albany  he  had  been  foremost  in  every  good  work, 
and  especially  enthusiastic  in  the  cause  of  Temperance,  at  a 
time  when  organized  efforts  in  its  behalf  were  in  their 
earliest  stage.  Edward  C.  Delavan,  whose  long  and  active 
career  as  a  Temperance  leader,  has  given  him  a  high  place 
as  a  philanthropist,  was  a  co-worker  with  him  in  a  crusade 
against  the  use  of  ardent  spirits,  an  evil  unfortunately 


81 

conspicuous  at  Albany,  especially  during  the  Legislative 
sessions,  and  a  prolific  source  of  painful  public  and  private 
scandals. 

The  presence  of  strong  drink  in  the  form  of  New 
England  rum  and  Holland  gin,  on  sideboards  and  dining 
tables,  and  the  almost  universal  habit  of  tippling  in  private 
houses  as  well  as  taverns,  sanctioned  by  the  Common  Law 
of  hospitality  derived  from  both  the  English  and  Dutch 
ancestors  of  the  good  people  of  Albany,  was  thoroughly 
established.  Against  this  dangerous  and  destructive  habit, 
a  few  reformers  took  their  stand  and  set  on  foot  an 
energetic  movement,  which  developed  into  the  concerted 
action  of  State  and  National  societies. 

Mr.  Delavan,  who  was  able  to  give  an  almost  exclusive 
devotion  to  the  reform  he  had  so  much  at  heart,  went  to  an 
extreme  in  its  advocacy  by  asserting  abstinence,  and  not 
temperance,  as  the  rule  of  social  duty  and  even  as  a  neces- 
sary canon  of  Christian  practice.  With  characteristic  ardor 
he  emptied  the  contents  of  his  wine  cellar  into  the  gutter 
of  Washington  street,  in  front  of  his  homestead,  as  a  liba- 
tion on  the  altar  of  his  new  found  faith,  an  offering  as 
sincere  as  it  was  eccentric. 

At  this  point  the  co-reformers  parted  company.  At 
Albany  and  afterwards  at  Washington,  while  Mr.  Delavan 
was  pushing  the  cause  of  total  abstinence,  his  former 
associate  advocated  that  of  temperance,  holding  to  the  end 
of  his  life  the  views  he  had  matured  in  his  earlier  study  of 
the  subject,  to  which  he  had  given  the  same  thorough  and 
conscientious  research  which  he  brought  to  every  topic 
engaging  his  attention. 

Mr.  Delavan,  in  his  desire  to  bring  his  friend  into 
unison  with  his  extreme  views,  placed  in  his  hands  a  work 
by  an  English  clergyman,  in  which  the  scriptural  argument 
for  abstinence  was  mainly  grounded  on  the  difference 
between  the  Hebrew  words  employed  in  the  Old  Testament 
to  denote  "wine"  or  "strong  drink,"  where  the  use  was 
commended,  and  the  words  employed  where  the  use  was 
condemned,  the  former  words  referring  to  unfermented 


82 

or  non-intoxicating  juice  of  the  grape,  and  the  latter  to 
intoxicating  drinks.  The  author  came  to  this  country  and 
made  a  visit  to  Mr.  Delavan,  who,  in  advance  of  his  arrival, 
notified  Mr.  Butler  of  his  coming,  and  arranged  that  an 
interview  should  take  place  between  them.  To  this  inter- 
view he  looked  forward  with  certain  anticipation  of  the 
conversion  of  his  friend  to  his  own  views. 

During  the  interval,  the  latter  subjected  the  book  and 
its  argument  to  the  most  thorough  examination.  Bible  in 
hand,  he  scrutinized  every  passage  in  the  Old  Testament  in 
which,  in  the  authorized  version,  the  words  "wine"  or 
"  strong  drink"  occur,  and  prepared  a  complete  "brief," 
as  to  the  use  of  the  word  in  the  English  translation,  a  task 
which  I  well  remember  occupied  the  leisure  of  the  Sundays 
of  a  summer  vacation. 

The  author  arrived,  and  the  interview  which  Mr.  Dela- 
van had  arranged  took  place  at  his  office  in  Albany.  The 
sequel  may  be  best  told  in  his  own  words,  taken  £rom  a 
letter  which  he  wrote  me  after  my  father' s  death,  in  refer- 
ence to  this  episode  in  the  course  of  their  long  and  un- 
broken friendship.  He  says : 

"The  meeting  of  these  two  learned  Christian  men 
was  to  me  of  the  deepest  interest,  for  I  saw  that  if  Dr. 
James  could  be  sustained,  the  cause  would  be  placed  on 
the  most  impregnable  basis,  on  God's  Word,  and  nothing 
could  overthrow  it.  For  some  time  it  appeared  that  all 
things  were  going  on  smoothly  to  sustain  Dr.  James,  but 
all  at  once  your  father  came  to  a  text  where  Yayin  was  in- 
troduced. 'Now  tell  me,  Dr.  James,'  said  your  father, 
'  does  Yayin  here  mean  intoxicating  wine  ?'  I  saw,  at 
once,  my  friend  Dr.  James  appeared  to  be  confused,  if  not 
confounded,  the  blood  mounted  to  his  face,  and  he  declined 
to  answer  to  your  father' s  satisfaction,  who  at  once  rolled 
up  his  papers  and  left  the  office,  and  I  have  no  doubt  he 
then  made  up  his  mind  that  we  must  look  elsewhere  than 
to  the  Bible  as  authority  for  total  abstinence  as  a  duty." 

Mr.  Delavan,  while  conceding  that  the  argument  of  his 
author  did  not  stand  the  test  of  thorough  investigation, 
was  always  unwilling  to  admit  that  the  untoward  result 
described  in  his  letter  was  due  to  anything  else  than  an 


83 

unwillingness  on  the  part  of  Dr.  James  to  acknowledge  an 
error  which  was  capable  of  explanation,  and  which,  as  Mr. 
Delavan  further  on  in  the  letter  from  which  I  have  quoted, 
and  in  conversation,  insisted,  was  by  no  means  fatal  to  the 
Scriptural  argument.  But  the  Bible  study  in  preparation 
for  the  discussion,  perhaps  more  than  the  discussion  itself, 
the  result  of  whicli  so  disappointed  Mr.  Delavan,  led  to 
settled  convictions  on  the  part  of  his  friend,  and  confirmed 
him  in  the  habit  of  temperance,  pursued  with  a  strictness 
which,  while  rejecting  compulsory  extremes,  was  so  con- 
sistent and  absolute  as  to  entitle  him  to  the  tribute  of 
another  life-long  friend,  that  he  exemplified  the  lines  of 
Dryden,  and 

"  Refined  himself  to  soul,  to  curb  the  sense, 
And  almost  made  a  sin  of  abstinence." 

In  a  letter  in  my  possession,  written  by  General  Jack- 
son to  Mr.  Van  Buren,  he  says  that  the  new  Attorney- 
General  has  made  a  visit  to  Washington  and  produced  a 
very  favorable  impression. 

The  first  impression  thus  recorded  deepened  into  the 
warmest  friendship.  The  intimacy  between  the  President 
and  the  Attorney-General  became  close  and  familiar,  and 
seemed  to  be  nourished  and  strengthened  by  the  absolute 
dissimilarity  of  their  training  and  characteristics.  The  old 
soldier  of  the  frontier  and  the  wilderness — choleric  and  self- 
willed,  violent  in  opinion  and  prejudice,  but  sound  in  sense 
and  in  the  principles  he  held,  patriotic  to  the  core,  and  fear- 
less of  any  foe — had  a  sympathetic  side  to  his  rough-hewn 
nature  which  only  revealed  itself  at  the  magic  touch  of  a 
true  and  loyal  friendship.  Such  a  friendship  was  soon 
formed  between  the  youngest  member  of  the  Cabinet  and 
the  veteran  President.  The  most  unreserved  confidence 
and  personal  attachment  existed  between  them.  The  polit- 
ical gossip  which  affixed  to  the  duties  of  the  Attorn  ey- 
General  that  of  the  President's  "conscience-keeper" 
while  meant  for  a  partisan  sneer — was  not  wholly  a  mis- 
nomer, for  the  function  of  conscience  was  neither  out  of 


84 

place  nor  out  of  use  in  the  sharp  conflicts  of  that  political 
era. 

Whatever  may  be  the  final  judgment  as  to  the  right  or 
wrong  of  the  opposing  views  and  the  contending  parties  of 
the  time,  the  men  who  rallied  to  the  support  of  Jackson 
against  Nullification,  against  the  domination  of  the  United 
States  Bank  and  the  diversion  of  the  Government  from  the 
simple  province  of  governing,  will  suffer  nothing  by  com- 
parison with  their  opponents,  either  as  to  purity  of  private 
character  or  patriotism  in  the  discharge  of  public  duty. 

Necessarily,  to  a  man  accustomed  by  long  habit  and 
native  choice  to  do  more  work  than  duty  required,  the  la- 
bors of  the  office  of  Attorney-General  did  not  wholly  suffice. 
It  had  not,  at  that  time,  reached  the  proportions  of 
the  present  Department  of  Justice,  and  the  salary  was 
wholly  inadequate  to  the  expenses  of  a  life  in  Wash- 
ington. But,  while  preparing  and  arguing,  without  aid, 
all  the  Government  causes  and  discharging  all  the  other 
duties  of  the  office,  these  were  supplemented  by  a  con- 
tinued private  practice  in  the  higher  Courts,  State  and 
Federal. 

At  the  close  of  the  Seminole  War,  in  1836,  when  Gen- 
eral Cass  left  the  War  Department  for  the  mission  to 
France,  President  Jackson,  anticipating  the  election  of 
Mr.  Van  Buren  to  the  Presidency,  and  wishing  to  leave 
him  free  to  select  the  successor  of  General  Cass,  insisted, 
in  a  personal  letter,  that,  for  the  remainder  of  the  term, 
the  Attorney- General  should  assume  the  duties  of  the 
vacant  office. 

He  wrote  as  follows  : 

"WASHINGTON,  Oct.  4,  1836. 

My  DEAR  SIR  :  Governor  Cass  has  this  day  handed  me  his 
resignation  and  I  have  appointed  Mr.  Harris  to  act  as  Sec- 
retary of  War  until  another  is  appointed. 

From  the  conversation  I  had  with  you  on  this  subject  I 
rely  upon  your  taking  charge  of  that  Department  until  the 
4th  of  March  next.  This  combined  with  your  duty  as  At- 
torney-General will  be  onerous,  still  I  know  your  capacity 


85 

and  indefatigable  industry,  competent  to  both,  and  as  far  as 
my  abilities  and  health  will  permit,  the  burden  shall  be 
lightened. 

Please  present  me  kindly  to  your  amiable  lady  and  fam- 
ily and  accept  the  assurance  of  my  continued  respect,  con- 
fidence and  esteem. 

ANDBEW  JACKSON." 

The  office  of  Secretary  of  War  was  accordingly  accepted 
and  its  duties  discharged  until  the  close  of  President  Jack- 
son's  term. 

It  was  during  this  short  incumbency  that  the  sole  in- 
stance of  conflict  between  the  Cabinet  officer  and  the  Ex- 
ecutive occurred.  A  West  Point  cadet  had  been  dismissed 
from  the  Academy,  on  sufficient  grounds,  by  the  Superin- 
tendent of  the  post  and  the  case  was  before  the  Secretary 
of  War  for  his  action.  Some  personal  friends  of  the  of- 
fender went  to  President  Jackson  and  made  so  strong  an 
appeal  to  him,  that  he  yielded  good  naturedly  to  their  in- 
tercession and  made  an  order  reinstating  the  dismissed 
cadet.  The  Secretary  of  War  at  once  insisted  that  this 
order  was  an  interference  with  his  proper  duties,  calling 
for  his  resignation,  if  not  promptly  withdrawn.  The  Presi- 
dent saw  his  mistake  and  revoked  his  order. 

On  the  accession  of  Mr.  VanBuren  to  the  Presidency,  he 
was  more  than  ready  to  place  his  old  pupil  and  steadfast 
friend  at  the  head  of  any  Department  of  the  Government 
he  might  prefer  and  would  not  listen  to  his  request  for  re- 
tirement. The  favorite  project  of  a  Law  School  retained  its 
hold  on  his  sympathies  and  he  had  already  made  an  en- 
gagement to  undertake  the  establishment  of  a  Law  Depart- 
ment in  the  University  of  the  City  of  ISTew  York,  whose  lib- 
eral charter  granted  by  the  Legislature  of  1833  gave  it  power 
to  embrace  a  course  of  legal  studies  in  its  various  branches 
of  instruction.  Adhering  to  his  determination  to  accept  no 
position  which  was  non-professional,  he  yielded  to  Mr.  Yan 
Buren'  s  wishes  by  agreeing  to  retain  the  office  of  Attorney 
General  for  a  year,  a  period  afterwards  lengthened  by  six 


86 

months,  and  on  September  15,  1838,  his  resignation  was  re- 
luctantly accepted  by  the  President,  whose  letter  accepting 
it  is  marked  by  the  same  kindness  and  consideration  as 
that  already  given  to  the  reader.  He  says:  "However 
deep  my  regret  at  parting  with  you,  I  am  nevertheless  too 
well  satisfied  that  justice  to  yourself  and  your  family,  re- 
quire this  step  on  your  part,  to  hesitate  in  complying  with 
your  wishes." 

The  commercial  disasters  of  1836  and  1837  and  the  con- 
sequent period  of  financial  disorder  and  distress  had  caused 
wide -spread  embarrassments  from  which  professional  men 
were  not  wholly  exempt  and  public  office  with  its  attendant 
burden  of  expense  was  undesirable  and  in  fact  impossible 
in  comparison  with  the  advantages  of  a  leading  professional 
position  in  New  York.  Before  his  retirement  from  the  Cab- 
inet of  Mr.  Van  Buren,  the  Attorney- General  had  settled  his 
f araily  in  New  York  and  on  his  return  to  private  life  he  en- 
tered at  once  into  active  practice  at  the  Metropolitan  Bar. 

At  the  same  time  he  undertook  the  execution  of  his 
long  cherished  plan  of  a  Law  School. 

William  Kent,  then  high  in  professional  eminence  and 
David  Graham,  Jr.,  one  of  the  most  brilliant  members  of 
the  New  York  Bar,  a  man  of  the  highest  repute  for  his 
success  before  juries  both  in  the  civil  and  criminal  courts, 
and  author  of  a  standard  work  on  Practice,  associated  them- 
selves with  him  in  the  work. 

Doctor  James  M.  Matthews,  a  prominent  divine  and  a 
man  of  great  executive  capacity  and  unbounded  confidence 
in  the  success  of  the  extended  plans  he  had  formed  for  the 
University  of  which  he  was  a  main  promoter  and  the  first 
Chancellor,  had  succeeded  in  enlisting  the  co-operation  of 
many  leading  men  in  the  organization  of  an  institution, 
which  was  intended  to  found  in  the  great  commercial  and 
business  centre  of  the  nation,  a  true  University,  embracing 
courses  of  instruction  in  every  department  of  art  and  science, 
with  the  great  advantages  to  be  derived  from  the  constantly 
growing  resources  of  the  metropolis  and  a  broad  and  free 


87 

system  of  management  and  control,  suited  to  the  com- 
mercial genius  as  well  as  the  political  methods  of  the  people. 

The  experiment  of  a  Law  School  undertaken  with  many 
auspices  of  success  was  environed  by  some  insuperable 
obstacles. 

Like  many  of  the  enterprises  of  that  period,  full  of  grand 
schemes  hindered  by  the  financial  misfortunes  which  had 
overspread  the  country,  a  long  period  of  patient  waiting 
and  working  was  required  to  bring  to  a  successful  issue 
the  plans  of  its  founders. 

The  Law  Department  was  inauguarated  by  addresses 
delivered  by  the  three  professors  early  in  1838,  and  a  com- 
plete course  of  instruction  was  marked  out,  most  admirable 
in  its  conception  and  details,  and  some  students  were  at 
once  attracted  to  the  courses  of  instruction.  But  this  ex- 
periment of  conducting  a  School  of  Law  by  lectures  to  be 
delivered  by  lawyers  in  full  practice  at  the  Bar,  and  to  be 
listened  to  by  students  in  law  offices,  was,  at  the  time  it  was 
tried,  premature  and  impossible  of  success. 

The  co-workers  in  this  earliest  effort  to  establish  a  School 
of  Law,  could  only  lay  the  foundations  on  which  in  after 
years  their  successors  have  been  able,  with  ampler  sources 
of  success,  to  build  with  honor  and  profit. 

Shortly  after  Mr.  Butler's  return  to  New  York,  the 
sudden  death  by  his  own  hand,  of  William  M.  Price,  the 
District  Attorney  for  the  Southern  District  of  New  York, 
startled  the  profession  and  alarmed  the  Government. 
President  Yan  Buren,  who  wished  to  place  the  office  in 
strong  and  safe  hands,  immediately  asked  the  ex- Attorney 
General  to  accept  it.  It  was  an  office  at  that  time  pecu- 
liarly representative  of  the  Government.  John  Duer, 
his  Associate  Reviser,  had  held  it  under  Mr.  Adams. 
It  did  not  preclude  private  practice  in  the  Courts,  and 
was  liberally  compensated  by  the  fees  allowed  by 
law  in  lieu  of  salary,  and  was  regarded  by  the  profes- 
sion as  a  post  of  high  distinction.  This  office  he  held  dur- 
ing the  whole  of  Mr.  Yan  Buren' s  term,  being  succeeded  by 


88 

Ogden  Hoffman   on    the  accession  of    General  Harrison, 
March  4th,  1841. 

Mr.  Van  Buren's  defeat  at  the  Presidential  election  of 
1840,  did  not  in  the  least  dampen  the  ardor  of  his  political 
friends  in  New  York,  and  they  looked  forward  with  cer- 
tainty to  his  continued  leadership  of  the  Democratic  party, 
and  to  his  candidacy  in  ]  844. 

In  the  Convention,  held  at  Baltimore,  in  May,  1844,  Mr. 
Bntler  as  the  nearest  personal  friend  of  Mr.  Van  Buren  and 
his  immediate  political  representative,  headed  the  opposi- 
tion to  the  scheme  by  which,  under  the  imposition  of  the 
rule  requiring  a  two-thirds  vote  to  nominate  the  candidate, 
the  clear  majority  pledged  to  Mr.  Van  Buren,  in  ad- 
vance of  the  Convention,  was  rendered  wholly  ineffectual. 

His  speech  at  Baltimore  in  opposition  to  the  two-thirds 
rule,  I  think  he  regarded  as  the  most  important  oratorical 
effort  of  his  life.  Always  a  graceful  and  persuasive  speaker, 
he  was,  when  aroused  by  a  special  subject  or  occasion,  im- 
passioned and  eloquent.  In  this  instance,  the  discovery  of 
what  he  deemed  a  plot  contrived  to  defraud  its  victim  of  an 
ascertained  majority  vote  by  making  the  vote  itself  instru- 
mental to  destroy  its  efficacy  as  a  controlling  force,  coupled 
with  his  strong  personal  attachment  to  the  chief  whose 
downfall  this  treachery  was  meant  to  compass,  gave  to  his 
effort  the  daring  of  a  brave  soldier  caught,  with  his  leader, 
in  a  traitorous  ambuscade,  and  fighting  for  a  life  dearer  than 
his  own.  All  descriptions  of  the  scene  concur  in  giving  this 
impression  of  his  bold,  vigorous  but  unavailing  defense 
of  the  right  of  the  majority. 

The  claims  of  Mr.  Van  Buren  to  the  continued  leader- 
ship of  his  party  were  inconsistent  with  the  plans  of  the 
managers  of  the  Southern  Democracy.  These  had  been 
thoroughly  matured,  and  they  admitted  of  no  candidacy 
which  was  not  in  full  sympathy  with  the  demand  for  the 
annexation  of  Texas,  to  which  Mr.  Van  Buren  had  re- 
fused his  concurrence,  at  the  risk  of  losing  the  nomina- 
tion for  the  Presidency.  The  Southern  leaders  succeeded 
in  that  part  of  their  scheme  which  called  for  the  defeat 


of  Van  Buren,  but  failed  in  that  part  of  it  which  called  for 
the  nomination  of  the  candidate  they  opposed  to  him. 
A  letter  from  Mr.  Van  Buren  to  Mr.  Butler  withdrawing  his 
name  was  followed  by  the  capture  of  the  Convention  for 
a  nominee  to  whom  the  Yan  Buren  men  transferred  their 
votes,  James  K.  Polk,  who  had  been  favored  by 
them  as  a  candidate  for  the  Vice-Presidency,  and  whose 
friends,  finding  him  available  to  unite  the  requisite  two- 
thirds  of  the  convention,  eagerly  fell  in  with  his  nomi- 
nation for  the  higher  office,  which  was  followed  by  his 
election,  in  November,  1844. 

Mr.  Polk  pressed  upon  Mr.  Butler  a  seat  in  his  Cabi- 
net, and  the  leading  friends  of  Mr.  Van  Buren  urged 
him  to  accept  it,  but  he  had  no  disposition  to  return  to 
Washington,  especially  as  the  associations  of  his  former 
residence  could  not  be  renewed,  and  he  contented  himself 
with  resuming,  at  the  President's  solicitation,  the  District 
Attorneyship  in  New  York,  a  position  which  he  occupied 
until  the  Spring  of  1848,  when  the  growing  aggressions  of 
the  Slave  Power  and  the  subserviency  of  the  national  ad- 
ministration to  its  demands  aroused  his  indignation,  severed 
his  long  relations  with  the  Democratic  party  and  brought 
him  into  open  hostility  to  the  Administration  and  its 
measures. 

The  Free- Soil  Convention,  held  at  Buffalo  in  August, 
1848,  marked  the  uprising  of  the  spirit  of  genuine  resist- 
ance on  the  part  of  the  North  to  the  domination  of  the  Slave 
Power.  It  was  a  movement  wholly  within  the  lines  of 
the  Constitution,  uninfluenced  and  uncontrolled  by  men  of 
extreme  views,  and  having  for  its  real,  as  well  as  its  de- 
clared purpose,  the  reassertion  in  principle  and  in  the  prac- 
tical administration  of  the  government  of  the  nationality  of 
freedom  and  the  sectionalism  of  slavery,  by  its  absolute 
exclusion  from  the  Territories  and  from  the  new  States. 
"No  more  slave  States,  and  no  slave  Territory,"  was  a  plain 
declaration,  and  while  it  violated  no  constitutional  guar- 
anty or  right,  it  was  the  death  knell  of  the  supremacy  of 


90 

the  Southern  oligarchy  which  sought  to  rule  the  nation. 
Into  this  movement  Mr.  Butler  entered  with  all  the  enthu- 
siasm of  his  earlier  days,  and  with  entire  unselfishness  and 
patriotism. 

He  was  largely  instrumental  in  bringing  about  the 
candidacy  of  Van  Buren  and  Adams  for  President  and 
Vice-President  upon  the  Free- Soil  platform  of  1848,  a 
candidacy  consistent  with  the  faith  of  the  fathers  and 
founders  of  the  Democratic  party,  and  the  only  possible 
protest  on  the  part  of  those  who,  while  holding  its 
principles  of  government,  had  never  entered  into  alliance 
with  the  propagandism  of  slavery. 

The  defeat  of  the  Democratic  ticket,  the  election  of 
General  Taylor,  and  the  exclusion  of  slavery  from  Cali- 
fornia and  New  Mexico  followed,  with  the  seeming  pacifi- 
cation of  the  slavery  agitation  by  the  compromises  of  1850, 
effected  by  the  powerful  aid  of  Mr.  Webster,  for  himself, 
however  patriotic  in  intent,  a  fatal  lapse,  and  for  the 
country  a  delusive  truce. 

In  July,  1849,  Governor  Fish  sent  Mr.  Butler  an  appoint- 
ment as  '  'Commissioner  of  the  Code, ' '  requesting  his  co-oper- 
ation in  the  work  of  codification  then  in  progress,  but  this  was 
declined  and  his  whole  time  was  given  to  his  private  practice 
and  to  the  philanthropic  objects  in  which  he  was  interested. 
The  nomination  for  the  Presidency,  in  1852,  of  Franklin 
Pierce,  a  native  of  New  Hampshire,  gave  to  the  Free- Soil 
Democrats  of  1848  some  ground  of  hope  for  an  administra- 
tion on  a  patriotic  basis.  The  compromise  measures  had 
taken  effect  as  a  kind  of  stay  of  proceedings  to  prevent  ex- 
treme action  by  either  party  and  there  was  no  emergency  to 
arouse  the  spirit  of  the  North  to  renewed  activity  against 
the  Slave  Power.  The  Democratic  Free-Soil  leaders 
deemed  it  safer  to  adhere  to  the  old  party  than  to  venture  on 
the  extreme  and  doubtful  ground  occupied  by  the  promot- 
ers of  the  candidacy  of  Hale  and  Julian.  Salmon  P.  Chase, 
in  an  open  letter  to  Mr.  Butler  appealed  to  him  to  oppose 
the  Democratic  ticket,  but  he  replied,  August  7,  1852,  by  a 
letter  in  which  he  reviewed  the  whole  political  situation, 


91 

declared  his  adhesion  to  the  principles  of  the  Free- Soil 
Convention,  and  avowed  his  intention  of  supporting  Pierce 
and  King,  as  representing  sound  Democratic  doctrines 
and  whose  election  under  the  existing  state  of  things  he 
believed  would  place  the  whole  responsibility  of  the 
government  in  the  hands  of  the  Democratic  party,  who, 
if  they  should  lend  themselves  to  a  crusade  against 
Freedom  would  soon  be  justly  overthrown. 

Personal  attachment  to  General  Pierce  had  something  to  do 
with  this  adhesion  to  him  as  a  candidate.  He  had  been  a  Rep- 
resentative in  Congress  from  New  Hampshire  during  General 
Jackson's  administration,  and  a  warm  friendship,  based  on 
identity  of  literary  tastes,  had  sprung  up  between  him 
and  the  Attorney-General.  I  well  remember  the  even- 
ing on  which  the  latter,  on  joining  the  family  circle,  pro- 
duced a  small  volume  which  he  said  his  friend  Mr.  Pierce 
had  just  given  him,  as  the  work  of  a  young  author  in  whom 
he  took  a  special  interest  and  in  whose  future  he  had 
great  faith.  It  was  the  Twice  Told  Tales  of  Nathaniel 
Hawthorne. 

President  Pierce  speedily  and  thoroughly  disappointed 
the  hopes  of  his  old.  friend  and  of  all  the  Northern  Demo- 
crats who  had  taken  part  in  the  Free-Soil  movement  of 
1848.  His  congratulations  to  the  country  in  his  first 
Annual  Message,  December  5,  1853,  on  the  repose  and 
security  in  the  public  mind  created  by  the  compromise 
measures,  coupled  with  the  declaration  that  "  this  repose  is 
to  suffer  no  shock  during  my  official  term,  if  I  have  power 
to  avert  it,"  were  followed,  before  the  end  of  the  same 
month,  by  the  measure  introduced  in  the  Senate  as  a  part  of 
the  Kansas-Nebraska  bill,  to  repeal  the  Missouri  com- 
promise of  1820,  a  bold  and  concerted  plan  by  which  the 
leaders  of  the  Democratic  party,  South  and  North,  declared 
their  deliberate  adhesion  to  the  Slave  Power  and  its  aggres- 
sive policy.  The  shock  of  thi  s  traitorous  blow  at  the  compact 
by  which  slavery  had  been  restricted  from  the  territory 
now  about  to  be  embraced  in  the  Union,  ended  all  further 


92 

repose  on  compromises,  earlier  or  later,  awoke  as  with 
a  trumpet  blast  the  free  spirit  of  the  North,  and  heralded 
the  opening  of  the  final  struggle  between  sectionalism  and 
the  Nation. 

At  the  great  meeting  of  citizens  held  in  the  City  Hall 
Park,  May  15, 1854,  to  protest,  on  the  eve  of  its  final  pas- 
sage, against  the  bill  repealing  the  Missouri  compromise, 
the  principal  speech  was  made  by  Mr.  Butler,  who  though 
enfeebled  by  recent  illness,  spoke,  in  the  open  air,  to  five 
thousand  people,  with  all  his  wonted  vigor  and  fire,  striking 
the  key-note  of  the  speedy  harmony  and  united  action 
which  welded  together  in  the  Republican  party  all  the 
opposing  forces  rallied  against  slavery  extension,  when  he 
declared  that  the  issue  must  be  joined  upon  this  attempted 
subversion  of  the  ancient  ordinance  of  freedom,  and  that 
if  for  example,  Stephen  Arnold  Douglas,  its  leading  North- 
ern promoter,  "were  a  candidate  for  President  to-day, 
nominated  by  a  Baltimore  Convention,  and  William 
H.  Seward  or  any  other  honest  man  were  the  candidate  of 
the  opponents  of  this  bill,  he  should  vote  for  William  H. 
Seward  if  it  were  the  last  thing  he  had  to  do  in  this  sublu- 
nary sphere." 

The  force  of  this  declaration,  received  with  wild  enthusi- 
asm, was  well  understood  at  the  time  and  nothing  could 
more  forcibly  express  the  breaking  up  of  all  old  party 
issues  and  alliances  in  the  new  emergency  which  rallied 
men,  hitherto  widely  apart  in  political  opinion,  to  the  stand- 
ard of  revolt  against  the  invasions  of  the  Slave  Power. 

From  that  time,  he  was  constant  and  conspicuous  in  his 
efforts  against  the  steady  aggressions  and  outrages  of  the 
slavery  propagandists.  He  voted  for  Fremont  in  1856,  and 
by  voice  as  well  as  vote  denounced  the  frauds  and  crimes 
involved  in  the  effort  to  fasten  slavery  upon  the  people  of 
Kansas.  Still,  with  many  other  men  of  those  troublous 
times,  he  did  not  anticipate  a  violent  issue  of  the  conflict,  but 
hoped  to  the  end  of  his  life  for  a  peaceful  solution  by  con- 
stitutional methods.  "Never  despair  of  the  right.  Tyrants 


93 

and  apostates  may  attempt  what  they  please.  They  may 
endeavor  to  bear  down  the  rights  of  the  people,  but  all 
their  assaults  will  be  in  vain  in  the  presence  of  a  free,  intel- 
ligent people  like  those  of  the  Free  States."  These  words 
spoken  in  the  Park  in  1854,  were  prophetic  of  results 
reached  in  a  way  he  did  not  foresee.  He  was  not 
spared  to  witness  their  complete  fulfillment,  but  had  the 
scriptural  portion  accorded  to  the  good  man  ' '  taken  away 
from  the  evil  to  come." 

The  later  years  of  his  professional  life  were  largely  given 
to  a  litigation  of  great  magnitude  which  grew  out  of  the 
attempt  of  the  representatives  of  an  insolvent  corporation, 
the  Xorth  American  Trust  and  Banking  Company,  one  of 
the  speculative  enterprises  of  which  the  financial  history  of 
New  York  has  presented  so  many  specimens,  to  defeat  the 
claims  of  its  secured  creditors,  chiefly  English  capitalists. 

The  amounts  involved  in  the  various  suits  which  arose 
in  the  cause  of  this  litigation  and  which  during  many  years 
were  pending  in  the  courts  of  this  State,  do  not,  in  these 
later  days  of  gigantic  corporate  obligations  appear  as  start- 
ling as  they  did  in  that  earlier  time.  The  validity  of 
trusts,  one  known  as  the  Million  Trust,  and  others  as 
the  Half  Million  Trusts  were  the  main  subjects  of  dis- 
pute, but  the  complexity  of  the  facts,  the  novelty  and  im- 
portance of  the  questions  involved  and  the  singular  zeal 
and  ability  with  which  the  opposition  to  the  creditors  was 
conducted,  combined  to  make  the  various  suits  almost  unpa- 
ralleled in  their  number  and  in  the  methods  by  which  they 
were  promoted.  On  the  opposing  sides  of  these  cases  the 
ablest  lawyers  in  the  State  were  ranged  against  each  other. 
As  leading  counsel  for  the  English  creditors,  among  whom 
were  the  Bank  of  England  and  other  capitalists  in  London, 
Mr.  Butler  had  the  largest  share  of  the  labor  and  responsi- 
bility of  the  contest  and  this,  at  a  time  when  he  was  broken 
in  heart  and  spirit  by  the  death,  in  the  summer  of  1853,  of 
his  wife,  a  blew  from  which  he  never  recovered  and  which, 


94 

with  his  arduous  self-imposed  professional  task,  broke  down 
his  vigorous  constitution. 

Of  one  instance  of  his  labors  in  these  causes  Judge  Kent 
says : 

"  In  this  case  which  for  voluminous  and  complicated 
pleadings  and  proofs  was  perhaps  unparalleled  in  our 
Courts,  it  was  deemed  necessary  that  a  condensed  state- 
ment of  the  evidence  of  the  whole  case  and  legal 
points,  with  minute  references  to  the  proofs  and  au- 
thorities affecting  every  point,  should  be  prepared  for  the 
Court  of  Appeals.  Two  of  the  associated  lawyers  were  pre- 
vented by  other  engagements  from  undertaking  the  work  ; 
I  shrunk  from  it  as  utterly  beyond  my  powers— and  it  fell  to 
the  self-sacrificing  industry  of  Mr.  Butler.  Our  conferences 
in  relation  to  it  were  of  daily  occurrence,  and  I  observed, 
with  alarm,  its  gradual  effect  upon  his  health.  Often  have 
I  left  him  bending  over  his  desk,  late  of  a  July  night,  and 
found  him  the  next  morning  in  the  same  posture,  which 
had  been  varied,  in  the  interval,  by  only  a  brief  period  of 
intermission,  in  which  he  has  told  me  that  sleep  was  often 
sought  in  vain.  I  remonstrated  often,  seriously — almost 
angrily.  I  remember  his  once  answering  me  by  repeating 
Wordsworth's  '  Ode  to  Duty.'  It  was  impossible  to  with- 
draw him  from  his  work  ;  and  thus  health  was  wasted  at 
the  midnight  taper — life  itself  consumed  in  the  severe 
labors  of  his  office — and  when  his  task  was  finished  to  the 
admiration  of  his  associates  and  opponents,  the  anxious 
eye  of  friendship  saw  too  surely  that  the  stamina  of 
his  constitution  was  gone.  It  enhances  our  idea 
of  his  energy,  to  know  that  this  too  protracted  labor  was 
in  part  performed  while  mourning  a  bereavement,  the  most 
afflicting  that  could  occur  to  a  man  of  his  domestic  affec- 
tions. I  have  no  right,  even  in  the  spirit  of  panegyric,  to 
invade  the  privacy  of  his  domestic  affections  ;  but  it  is  not 
improper  to  say  that  the  loss  of  the  beloved  and  honored 
partner  of  his  life  gave  additional  effect  to  his  fatal  labor, 
while  our  admiration  is  increased  when  we  think  that  he 
carried  on  his  work,  enduring  in  silence  and  composure  a 
heartfelt  wound  which  had  touched  a  nerve  where  ' '  agony 
resided." 

Such  was  the  importance  of  the  case  to  which  Judge 
Kent  refers,  that  the  Court  of  Appeals  gave  to  its  hearing 
an  entire  term.  Probably  no  such  forensic  contest  ever 


95 

occurred  in  this  State,  or  is  likely  to  occur  in  the  future,  as 
that  whose  result  is  embodied  in  the  first^two  hundred  and 
ninety-seven  pages  of  the  fifteenth  volume  of  the  New  York 
Reports.  Greene  C.  Bronson  and  Samuel  Beardsley,  two 
of  the  foremost  jurists  in  the  State,  only  lately  retired  from 
the  Bench  of  the  Supreme  Court,  and  Nicholas  Hill,  in 
many  respects  the  best  equipped  lawyer  at  the  Bar,  were 
opposed  to  Benjamin  F.  Butler,  Charles  O' Conor,  William 
Kent  and  William  Curtis  Noyes.  Besides  these  noted 
names  which  appear  in  the  report,  other  able  lawyers  had 
been  concerned  in  the  management  and  preparation  of  the 
case,  and  no  subject  of  controversy  was  ever  more  skilfully 
or  completely  presented  to  a  Court  of  Justice. 

The  fourteen  resolutions  of  the  Court  disposing  of  the 
question  involved  in  favor  of  the  English  creditors  was  a 
signal  victory  for  their  counsel  and  a  crowning  professional 
triumph  for  their  senior,  who  was  well  satisfied  to  associate 
with  the  close  of  his  long  professional  career,  a  success  in 
the  interest  of  justice,  against  what  he  regarded  as  a  scheme 
of  repudiation  and  wrong. 

In  spite  of  exhausted  strength  and  failing  health  he 
was  induced  to  enter  upon  another,  and  as  it  proved  a 
final,  professional  contest,  in  which  his  personal  sympa- 
thies and  his  sense  of  justice  were  enlisted  in  behalf  of  a 
client  whose  cause  he  espoused  as  if  it  were  his  own. 

Uriah  P.  Levy,  a  captain  in  the  United  States  Navy, 
who  had  risen  in  the  service  by  his  gallantry  and  efficiency, 
had  been  a  comrade  in  the  war  of  1812  of  Lieut.  William 
Howard  Allen,  of  whom  mention  has  already  been  made. 
A  fellow  prisoner  with  him  at  one  time,  it  was  a  tradition 
of  their  captivity  that  they  were  given  the  privilege  of 
walking  from  their  place  of  confinement  as  far  as  a  certain 
mile-stone  on  the  road  leading  into  the  interior  country. 
Taking  advantage  of  the  solitude  or  the  darkness  in  one  of 
their  walks,  they  dug  up  the  mile-stone  and  removed  it  to  a 
considerable  distance  inland,  thus  securing  a  substantial 
enlargement  of  the  jail  liberties. 


96 

This  fellowship  of  suffering  and  adventure  with  one 
whom  my  father  had  loved  and  mourned  as  a  brother,  made 
Captain  Levy  a  welcome  guest  at  his  house,  and  was  deemed 
to  entitle  him  to  the  self-sacrificing  service  which  lie  in- 
voked to  secure  redress  against  the  oppression  and  injustice 
of  the  government  to  which  he  had  devoted  his  life. 

Levy  was  an  Israelite.  His  personal  bearing  was  not 
agreeable  to  his  fellow-officers.  They  objected  to  him  on 
the  ground  of  his  race  and  his  manners,  and  occasions  of 
complaint  and  provocation  arose  whereever  he  was  placed 
on  duty.  He  had  been  arraigned  before  six  several  courts 
martial  for  improprieties  of  conduct,  most  of  them  trivial, 
and  had  received  and  submitted  to  several  sentences,  com- 
paratively light,  until,  by  the  judgment  of  the  sixth  court 
martial,  he  was  dismissed  from  the  service  of  the  United 
States.  Upon  a  review,  this  harsh  sentence  was  disap- 
proved by  President  Tyler  and  Commodore  Levy  retained 
his  command  and  rank,  but  such  was  the  prejudicy 
against  him  that  he  was  unable  to  induce  the  Navy 
Department  to  assign  him  to  any  post  of  duty.  Finally, 
under  the  operation  of  an  Act  of  Congress,  passed  in  1855, 
"to  promote  the  efficiency  of  the  Navy,"  a  Board  of  fif- 
teen officers  reported  him  to  the  Secretary  of  the  Navy  for 
dismissal,  and  his  name  was  stricken  from  the  roll.  This 
action  was  without  notice  to  Levy  or  opportunity  of  hear- 
ing, and  was  based  mainly  on  the  records  of  the  six  courts 
martial  of  which  he  had  been  the  subject,  although  the  last 
of  these  had  taken  place,  and  its  sentence  had  been  an- 
nulled, nearly  fifteen  years  before  the  action  of  the  Board, 
and  although  he  was  in  full  vigor  of  mind  and  body, 
and  competent  for  every  duty  of  his  captaincy. 

Smarting  under  this  injustice,  and  after  having  appealed 
in  vain  to  the  Navy  Department,  Levy,  who  was  possessed 
of  ample  means  and  of  untiring  energy,  devoted  himself  to 
the  task  of  procuring  redress  by  legal  methods,  and,  after 
ong  and  patient  effort,  succeeded  in  procuring,  as  a  neces- 
sary basis  for  a  review  of  his  case,  the  passage,  in  January, 
1857,  of  an  Act  of  Congress  establishing  a  Court  of  Inquire 


97 

to  investigate  the  case  of  any  officer  dismissed  by  the  Board 
of  Fifteen,  and  to  report  thereon. 

A  day  in  court  being  thus  accorded,  Levy,  with  the  aid 
of  his  counsel,  made  good  his  claim  for  a  thorough  investi- 
gation. All  the  records  of  the  previous  courts  affecting 
him  were  ransacked,  his  whole  career  was  made  the  subject 
of  scrutiny  and  evidence,  and,  after  a  long  and  arduous 
trial,  the  overwhelming  mass  of  testimony  compelled  a 
finding  by  the  Court  in  his  favor,  and  a  report  that  he  ought 
to  be  restored  to  the  active  list  with  the  grade  of  Captain. 
The  President  having  approved  this  finding,  he  was  nomi- 
nated to  the  Senate,  and  confirmed  by  that  body,  as  Cap- 
tain, from  the  29th  of  March,  1844,  a  restoration  to  rank 
and  vindication  of  character,  as  complete  as  it  was  unique, 
in  the  history  of  the  Naval  Service. 

Nothing  short  of  the  most  painstaking  and  thorough 
efforts  could  possibly  have  sufficed  to  overcome  the  deeply 
rooted  prejudices  which  had  been  the  foundation  of  this 
long  and  active  persecution  directed  against  a  competent 
and  faithful  officer.  The  defense  of  Captain  Levy  as  pre- 
pared and  published  with  the  annexed  proceedings  and  tes- 
timony, was  the  last  important  work  done  by  his  friend  and 
counsel,  and  is  a  signal  illustration  of  what  may  be  accom- 
plished, by  patience  and  skill,  in  reversing  wrong  judg- 
ments and  vindicating  right  principles. 

After  the  completion  of  this  final  work,  on  October  16, 
1858,  my  father  sailed  from  New  York  in  the  steamer 
"  Arago,"  accompanied  by  his  two  youngest  daughters,  and 
intending  to  spend  two  years  in  travel  and  residence  in 
Europe.  He  arrived  at  Havre  October  29th,  and  after  a 
short  stay  at  Rouen,  reached  Paris,  where  he  was  taken  ill 
almost  immediately,  and  where  he  died  at  the  Hotel  du 
Louvre,  November  8,  1858,  aged  sixty-two  years,  ten 
months  and  twenty-five  days. 

At  the  meeting  of  American  citizens  in  Paris  on  the  oc- 
casion of  his  djeath,  John  Y.  Mason  of  Virginia,  then  United 
States  Minister  to  France,  afterwards  conspicuous  in  the 
memorable  Mason  and  Slidell  incident  of  the  Rebellion,  pre- 


98 

sided,  and  Hamilton  Fish,  already  eminent  in  public 
life,  and  in  later  years  the  wise  and  efficient  administrator 
of  the  State  Department,  presented  the  resolutions.  On  the 
eve  of  their  bitter  struggle  the  North  and  South  united  by 
leading  representatives  of  each  section  in  a  tribute  of  respect  to 
a  man  justly  eulogized  by  both  for  his  services  to  his 
native  State  and  to  the  whole  country. 

At  home  the  tributes  of  the  Bar,  at  the  meeting  held  De- 
cember 1,  1858,  to  which  reference  has  been  already  made 
in  the  sketch  of  the  Revision  and  at  the  funeral  services 
December  2,  1858,  were  of  a  remarkable  character,  both  as 
to  the  speakers  and  the  words  they  spoke.  Mr.  Justice 
Nelson  of  the  Supreme  Court  of  the  United  States,  long 
our  ideal  in  bearing,  manner  and  every  element  of  judicial 
fitness,  was  the  presiding  officer  of  the  meeting  of  the  Bar. 
Samuel  J.  Tilden,  conspicuous  then  and  always  for  his  clear 
insight  and  great  professional  and  political  sagacity ;  Judge 
Kent,  a  man  of  rare  accomplishments  and  the  finest  sympa- 
thies ;  Marshall  S.  Bidwell,  a  jurist  affluent  in  learning  and 
of  high  Christian  character  ;  Judge  Edmonds,  noted  for  his 
fearlessness  in  the  discharge  of  duty,  and  his  enthusiasm 
in  every  cause  he  deemed  a  righteous  one  ;  Daniel  Lord, 
the  type  and  fit  exemplar  of  the  commercial  lawyer  in  the 
highest  sense,  a  representative  of  all  that  was  best  in  the 
great  metropolis  of  the  Nation,  united  in  terms  of  eulogy 
which  would  seem  extravagant  and  overcolored  if  their 
truth  were  not  attested  by  the  strong,  unmistakable  per- 
sonal emotion  which  marked  their  utterances.  When 
Judge  Kent,  in  his  address,  unexcelled  for  beauty  and 
grace  by  any  effort  of  the  class  to  which  it  belongs,  said  in 
closing: — "If,  to  a  stranger,  this  imperfect  sketch  of  the 
friend  we  mourn  shall  appear  to  be  too  unmingled  a  eulogy,  I 
can  only  say  that  I  believe  I  have  been  attempting  to  describe 
a  man  in  whom  I  knew  no  fault, ' '  --he  spoke  in  full  memory  of 
the  many  years  during  which  he  had  been  in  close  contact 
with  that  friend  in  many  sharp  and  bitter  contests,  in  all  of 
which  the  scrutiny  of  unbiased  and  manly  observers  found 


99 

him  always  sincere  in  friendship,  loyal  in  duty,  pure  in  life 
and  unselfish  in  purpose. 

The  religious  side  of  his  character  which  was  marked  by 
the  same  thoroughness  and  fidelity  which  belonged  to  his 
professional  career  was  emphasized  almost  as  fully  by  the 
judges  and  lawyers  I  have  named  as  by  the  clergymen  who 
spoke  at  his  burial.  Doctor  William  B.  Sprague  of  Albany, 
a  divine  of  national  reputation  ;  Doctor  Thomas  H.  Skinner 
long  the  revered  pastor  of  the  Mercer  Street  Church  in  New 
York  ;  Doctor  William  Adams  the  learned  and  beloved  min- 
ister of  the  Madison  Square  Presbyterian  Church,  later  the 
head  of  the  Union  Theological  Seminary,  and  George  W. 
Bethune,  foremost  in  the  pulpit  of  the  Reformed  Church 
for  eloquence  and  ability,  and  no  stranger  to  platforms 
where  public  questions  of  the  hour  needed  his  ringing,  stir- 
ring tones,  all  spoke  in  words  prompted  by  long  associa- 
tion and  close  friendship,  alike  in  commendation  although 
very  various  in  expression  and  illustration. 

These,  in  their  turn,  might  seem  overstrained  were 
it  not  for  the  warmth  and  vividness  which  made  them  the 
testimony  not  only  of  willing  but  of  truthful  witnesses. 
"He  was  a  man,"  said  Doctor  Bethune,  in  the  single  pas- 
sage I  transcribe  from  these  memorial  addresses,  "whose 
piety  was  his  life.  My  dear  mother  said  to  me,  once,  of  a 
person  I  had  spoken  well  of  ;  '  My  son,  he  puts  on  his  polite- 
ness as  he  does  his  best  coat.  Give  me  a  man  whose  polite- 
ness is  in  his  skin!'  So  it  was  in  Mr.  Butler's  religion. 
It  was  part  of  himself.  There  was  no  affectation  about  it. 
No  one  ever  supposed  there  was.  It  shone  out  of  that 
bright  eye,  can  it  be  that  bright  eye  will  never  shine  on  us 
again  ?  It  beamed  from  his  countenance,  it  came  from  his 
heart,  it  was  a  transfiguration  from  within  that  made  his 
life  so  beautiful  in  all  the  grace  and  kindness  of  a  Christian 
gentleman." 

To  these  testimonies  I  need  hardly  add  my  own. 
The  record  I  have  traced  barely  indicates  the  wide  and 
varied  character  of  the  labors  of  the  life  to  which  it  relates, 


100 

and  wholly  fails  to  exhibit  the  personal  traits  which  gave 
to  every  aspect  of  that  life  and  work  their  own  peculiar 
charm. 

Few  men  were  ever  more  fully  and  constantly  occupied 
in  weighty  matters  of  private  and  public  concern,  or  more 
keenly  sensitive  to  the  responsibilities  they  imposed.  This 
made  him  habitually  serious,  but  never  disturbed  the  even 
cheerfulness  which  was  his  habit  of  mind,  or  deprived  him 
of  the  pleasure  to  be  gained  by  turning  from  the  drudgery 
of  his  daily  tasks  to  the  delights  of  home,  the  recrea- 
tions of  literature,  the  society  of  friends,  or  the  com- 
panionship of  Nature.  His  rare  liberality  and  catho- 
licity of  spirit  and  the  regard  for  the  rights  of  all 
men,  religious,  social  and  political,  which  he  carried 
into  practice  with  a  rare  consistency  and  consideration, 
kept  him  singularly  free  from  personal  asperities  even  in 
the  heated  party  conflicts  in  which  he  sometimes  found 
himself  opposed  to  friends  and  associates  ;  and  he  harbored 
no  resentments  against  men  who  had  done  him  cruel  and 
malicious  wrong.  This  nobility  of  character  was  a  trait 
which  endeared  him  to  a  host  of  true  friends  in  different 
walks  of  life  and  of  widely  divergent  views  and  beliefs. 

He  was  deeply  and  sincerely  religious  ;  a  rare  specimen 
of  true  piety  without  a  trace  of  bigotry  or  even  of  sec- 
tarianism, for  he  was  as  catholic  in  his  faith  as  he  was 
humane  in  his  sympathies.  I  cannot  exaggerate  or  over- 
state my  sense  of  his  virtues,  which  were  the  fruit  and 
flower  of  divine  grace  working  in  a  nature  which  seemed 
responsive  to  its  heavenly  touch  to  a  degree  seldom  seen  in 
the  sons  of  men. 

His  grave  is  at  Woodlawn  Cemetery,  and  on  the  stone 
which  marks  it  are  carved,  according  to  his  own  direction, 
beside  the  Scripture  text  which  attests  his  Christian  faith 
and  trust,  and  a  record  of  his  services  in  the  Cabinets  of 
Jackson  and  Van  Buren,  these  words,  commemorative  of 
his  share  in  the  greatest  work  of  his  life  :  "A  COMMIS- 
SIONER TO  REVISE  THE  STATUTE  LAWS  OF  THE  STATE  OF 
NEW  YORK." 


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